The body of every human being has been beautifully designed which works in a mechanical form. The future which was undreamt in the arena of sexual has been made possible through the advancement of technology of cloning or the birth of the child through test tubes, through surrogate mother. When a woman agrees to carry a baby in her womb and for giving that baby a life by giving her birth so that other family could raise her, this whole process is called surrogacy. In certain serenity the chance of surrogacy has been permitted and the intended guardians might be perceived as the lawful guardians from birth of that child. But it has been observed that this noble cause of letting parents who have lost the hope of having a baby can have their own baby through surrogacy has been looked down as a mode of money earning as a business in India which leads to commercializing surrogacy or “keeping womb for rent”. In our world which is globalizing rapidly, the development of regenerative the industry is a genuinely ongoing wonder. As India is still a developing country and more than half of the population is under poverty line this method of surrogacy has played a vital role in the harassment of the girls who are living a poor life which sometimes leads to increase in death rate which is alarming. In this paper we have discussed about the right of those women health who agreed to become a surrogate mothers and what are the issues related to paternity. As the time has been changing and there is a vast development in the field of technology new parents are opting for the option of surrogacy as it has become a new trend so our government agencies should look forward and make such laws which can regulate this procedure of surrogacy. Without a proper proof legitimate structure, patients will constantly be deluded and the proxies abused.

Keywords: surrogacy, maternal mortality, women’s right to health, paternity issues.

INTRODUCTION

            The human body is a magnificent machine, comprehension of which is as yet a mystery. The imminent of birth child as unnaturally conceived children, surrogate parenthood through more current advancements have presented undreamt of potential outcomes in the sexual field. Since any regenerative procedure that replaces the marital demonstration is infringement of the pride of reproduction when human multiplication is disengaged from sexual connection and partners have become more for the use of sexual needs. It gets hard to perceive pride in one another, particularly the pre conceived child^[1]. Because of the advancement in the field of science and technology it leads to huge contribution to the humanity. Be that as it may, the truth of the matter is that it isn’t morally right rather disputable.

MEANING AND REASONS OF SURROGACY

            Surrogacy is a strategy for helped proliferation whereby a lady consents to get pregnant for bringing forth a youngster for others to raise. She might be called as genetic mother (the more conventional type of surrogacy) or she might be embedded with an irrelevant incipient embryo. Having another woman bear a youngster for a couple to raises for the most part with the male portion of the couple as the hereditary father is alluded to in classical times. To have a child with same genetics the option of surrogacy come forward in which a parent can have a child with same genes through artificial process of reproduction. The word “surrogate” has been evolved from Latin word “Subrogare” meaning “designated to act in the spot of.” Altruistc surrogacy is the place a substitute mother consents to gestate a child for proposed guardians without being remunerated financially in any capacity. At the end of the day, this is in actuality a free surrogacy. Though, business surrogacy is an alternative in which aiming guardian offers a budgetary motivating force to make sure about a willing substitute. This mode of surrogacy where money has been exchanged against the birth child has been seen morally wrong according to many group pf people, has been considered as sin according to many religious and sacred group of people.^[2] There can be numerous reasons for opting this method of surrogacy. For example, guardians who wanted to become parents may organize a substitute pregnancy on the grounds that a lady who means to be parent is infertile or unfit to convey a pregnancy to term, e.g., women with hysterectomy, uterine distortion or with a background marked by intermittent premature births or any clinical sickness making her pregnancy a hazard to her own wellbeing. A female meaning to be a parent may likewise be healthy as well as fertile, yet reluctant to experience pregnancy. Agencies making preparations of surrogacy for the parents to be frequently helping them in dealing with the complexity of medications and legitimate facet engaged with process.^[3]

SURROGACY: INTERNATIONAL SCENARIO

            The laws that are governing the surrogacy are different, laws contrast generally starting with one nation then onto the next. In England, treating surrogacy as a mode of commercializing its courses of action are not legitimate and are disallowed by the surrogacy arrangement plan act 1985. A surrogate mother despite everything keeps up the legitimate ideal for the child, regardless of whether they are hereditarily disconnected. Except if a parental request or appropriation request is made the surrogate mother remains the lawful mother of the child.

STATUS OF SURROGACY IN USA

            In USA, the legal issues that are related with the surrogacy are different from state to state and it mainly depend upon the jurisdiction of the state. It is totally on the discretion of the state to let or not to let surrogacy or surrogacy contract fall under the ambit of legality and enforce it or simply to refuse its enforcement and to punish the offenders for commercializing the surrogacy.^{[4] [5]}

STATUS OF SUROGACY IN ASIAN COUNTRIES

            In Japan, a total ban has been imposed on the arrangements of commercial surrogacy by the science council and if any doctor, clients or agents are found performing this procedure, they will be penalized as per the provisions of the act. In Saudi Arab countries the concept of surrogacy has been banned on the ground of morality and ethics, they do believe that giving a birth in exchange of some money is inhuman act and should not be allowed.^[6]

            In 2001 Health Ministry of China has imposed ban on surrogacy and declare it illegal, although this act has been banned still the act of surrogacy has been growing in as “black market” because of which concerned government authorities are taking strict actions in accordance with the view point of the political parties.^[7][8]

LEGAL ASPECTS OF SURROGACY IN EUROPE

            In SWEDEN, surrogacy isn’t obviously directed. The legitimate method generally equal to it is making an appropriation of the child from the surrogate mother. Making arrangements for the surrogacy by the fertility clinics of Sweden has been regarded as illegal.^[9]

            UKRAINE: Ukraine is a country which has legalize the concept and procedure of surrogacy but it has restricted the adoption of this option only to the couples who are married.^[10][11]

            RUSSIA: In Russia, commercializing surrogacy is lawful and accessible for willing grown-ups. There must be a sure clinical sign for surrogacy. Outsiders have indistinguishable rights from for helped proliferation as Russian residents.^[12][13]

            BULGARIA: Surrogacy was beforehand unlawful in Bulgaria, yet as the system is as yet rehearsed wrongfully, the administration chose to authorize it. Rather than utilizing the term surrogate, however, Bulgaria considers it the ‘substitute mother’.^[14]

            GEORGIA: Surrogacy in Georgia Europe is legitimate however there substitute mother can’t practice any parental rights over the child.^[15][16]

            A few nations, for example, POLAND and ROMANIA among others have no characterized surrogacy laws and keeping in mind that it’s as yet conceivable to experience the surrogacy procedure in those countries. As it very well may be seen, laws on surrogacy in Europe are differed and for certain nations, dubious and non-existent.^[17][18]

HEALTH RISK ASSOCIATED WITH SURROGACY

            In the US, surrogate mothers are given close to two embryos for their wellbeing, though in India, surrogate mothers are embedded with up to five incipient organisms so as to build the odds of pregnancy. Utilizing such an enormous number of undeveloped organisms expands wellbeing dangers for babies and the mother. Odds of post birth anxiety of surrogate are more with the child that developed in mother’s belly, intricacies, for example, pre-eclampsia and eclampsia, urinary tract contaminations, stress incontinence, hemorrhoids, gestational diabetes, perilous drain and aspiratory embolism. Various pregnancy improves the probability of requiring a usable conveyance. A surrogate host of maternal advanced age has expanded danger of perinatal mortality, perinatal passing, intrauterine fetal demise, neonatal passing. There is a more serious hazard to the mother of pregnancy incited hypertension, stroke and placental unexpectedness. At the point when hormones or medications the surrogate mother is told to take, all medications have symptoms. Numerous women going through this Artificial insemination also take the treatment of fertility has experienced reactions that are adverse to their bodies and has found themselves more prone to risk while performing this procedure.^[19]

            Issues, for example, unexpected labor, hereditary contortion and contaminations which lead to expanded hospitalization of infant are significant issues to be considered in the contract of surrogacy.^[20]

            Numerous surrogate mothers breastfeed the babies during the initial hours following birth. Nonetheless, the legal guardian discover difficulty in starting the bosom taking care of and in setting up the holding among mother and youngster if there should be an occurrence of surrogacy.

            One of the significant disadvantages of initiated lactation in many surrogate mothers or legal mothers is that of the same quantity of mother milk as of the new mother has following her labor or delivery. This presents an issue as far as baby nutrition is concerned.^[21]

SOCIAL AND PSYCHOLOGICAL CONTEXT OF SURROGACY

            Regarding surrogacy as a commercial has created conflicts on social ground. Given the extraordinary defenselessness, 33% of the Indian women because of neediness, rejection from and minimization in labor and employment markets, man centric social and family structures and low instructive levels, the monetary benefit through surrogacy become a key push factor. Since most substitute moms are not from wealthy areas and the thought process essentially is money related so they are handily abused by the specialists working for commissioning guardians. Mystery and namelessness makes a negative situation that influences human relations inside and outside families. Surrogacy convey social disgrace in the general public as it is likened with prostitution and by uprightness of that it is contended that it ought to be prohibited on moral grounds. Surrogate moms are kept in segregation from families and permitted to meet families in ends of the week, which are against the human rights. Henceforth, there are number of moral, social, legitimate and mental issues related with surrogacy, which require dire requirement for encircling and usage of law.^[22]

SURROGACY AND WOMEN’S RIGHT TO HEALTH: INDIAN SCENARIO

            The idea of surrogacy in India isn’t new. Using womb of a women in exchange of money, this concept of commercializing surrogacy has been growing rapidly in India. In India where we find English language dominance and attraction of clients because of cheaper laborers draw in the willing customers.

            Future projections of surrogacy practice run from chance to misuse – from women living in rural areas in India inspired out of neediness to a cutting edge bad dream of creating nation infant farm^[23], if there should be an occurrence of surrogacy in India, it is difficult to tell that whether these ladies are practicing their very own privileges or whether they are compelled to become proxy moms because of their relative or spouse’s longing to satisfy material and budgetary needs.^[24][25]

            Adversaries of surrogacy contend that the training is equal to prostitution and by ethicalness of that comparability, it ought to be refused on moral grounds. Surrogacy contracts are “dehumanizing and distancing since they preclude the authenticity from securing the substitute’s viewpoint on her pregnancy. Surrogate mother attempts to abstain from building up an uncommon security with the youngster in her and perspectives the pregnancy as only an approach to acquire the genuinely necessary money. The installment for substantial administrations dehumanizes the surrogate mother and adventures her regenerative organs and ability for individual increases of the wealthy.

            The fact is that surrogacy outsourcing has been regarded as an exploitative practice in India. Right now, no law exists to secure the mother if there should be an occurrence of birth entanglement, constrained premature birth and so on.

            Since 2002, surrogacy for the purpose of commercialization has nearly got the legality in India and India has become a kind of pioneer in it. This is the explanation that has driven pundits to claim that surrogacy business is misusing poor ladies in nation like India previously having high maternal mortality proportion. As indicated by estimates, which may be traditionalist – the matter of surrogacy in India is now contacting $446-million a year.^[26]

            Arrangement as surrogate parenthood, in which a mother takes no responsibility for the child conceived, has raised good, moral social and lawful inquiries concerning both the women and the ‘baby’. According to lawful specialists “…if surrogacy turns into a avenue by which women in more extravagant nations pick less fortunate women in our nation to hold up under their infants, at that point it is monetary abuse, a sort of natural colonization.”^[27]

            Because of the commercializing of surrogacy, the Ministry of child and women development has come up with strong laws to examine the issues related with surrogacy. A drafted legislation has been prepared on the issue of surrogacy with strong punishments and penalties for those who violate the rules and regulations framed by the Indian Council of Medical Research as well as to stiffen the techniques used in Assisted Techniques. The draft law confines the quantity of incipient embryo moves a mother can experience to multiple times for a similar couple, if the initial two endeavors come up short and it additionally includes that no women should go about as a surrogate for in excess of three live births throughout her life. Indeed, these are the main rules surrounded by the ICMR and the Ministry of Health and Family Welfare in 2005. ICMR rules, expresses, “A family member, a referred to individual just as an individual obscure to the couple may go about as a substitute mother for couple. In the event of a relative going about as a substitute, the relative ought to have a place with a similar age as the women wanting the surrogacy.” The specialists accept that surrogacy impels childless couples unnecessarily toward the business of surrogacy. Section 3.10.5 of the rules expresses that “a surrogacy ought to be under 45 years” being the upper age without referencing the base age to be surrogate. So does that mean 18-year-old or somebody considerably more youthful, can become surrogate mother? Ore giving a permission to a woman who can become a surrogate mother for the intended parents, the ART Clinic must guarantee or must ensure (and put on record) that the women fulfills all the testable standards to experience full term pregnancy.” These rules are slanted and negligent. The bifurcated role of the women in surrogacy plans is inciting reestablished evaluation of the significance of parenthood and assignment of maternal rights.^[28]

PUBLIC HEALTH RELEVANCE OF SURROGACY

            ART and surrogacy provides solutions for infertility. With the growing demand for these administrations mutilates needs in the association of social insurance benefits as weight is developed to these tech conceptive strategies inside open markets and open division administration framework without building the fundamental facilities so that the infertility can be prevented. Because of the poverty and helplessness some poor people sell their own assets to facilitate themselves with the basic requirements or they have to sell their potential reproductive organs by seeing it as an opportunity to earn money – due to this many young women have risked their life and health. In the course of recent years or somewhere in the vicinity, our nation has seen a mushrooming of ripeness centers. This has roused the tourism of medical, where surrogacy has significant spot in its rundown of fascination as couples from abroad come looking for simple access to substitute moms. Because of these service providers, the intended parents come to India for quality and comfort of world class and these service providers provide such service at the institutions of India at very cheap prices and all this is accomplished by diminishing to the absolute minimum, the tests which are necessary and procedure of safety required while performing this method. Taking into account the high pace of commonness and poor usage of ART Regulatory Guidelines-2005 has raised a few issues about the reasonableness of surrogacy in the current setting from general wellbeing purpose of view.^[29] Most of issues and issues are because of absolutely unregulated private ART facilities with fluctuating costs, norms and strategies that offer supremacy to benefits as opposed to epidemiological requirements of the dominant part in India. The need to forestall optional barrenness attributable to poor obstetric administrations, conceptive tract diseases and poor dietary status of women and arrangement of essential administrations to manage the infertility treatment is hence overlooked by the legislature. Private division is given full opportunity to extend ART centers to advance tourism of medication and surrogacy. This can harm physically to surrogate mothers and can lead to other complications for example low weight of the child below medical standards birth and deformed children, which are not disclosed publically.^[30] As the contract made in these services are not disclosed completely so there can be some loopholes which can lead to legality. Another problem which is related to surrogacy is that if the surrogate mother is of another nation so problems related to the motherhood rights and nationality and rights related to the children can also arose.

SURROGACY: ISSUES AND PERSPECTIVE

            Setting up paternity might be simple enough with one genetic or hereditary test, yet the issue isn’t basic and simple for the courts to determine the paternity. What will occur if a non-custodial dad has been the “father” to a youngster for a long time just to discover that he isn’t the natural dad? Will he get refund on the support that he provided to that child? Or then again if a substitute mother breaks her agreement, would she be able to pursue the intended couple for financial help for that child to which she becomes a surrogate mother? These are intense lawful inquiries for judges and policymakers. The Indian framework just perceives the birth mother.

            As per the legal system in India is concerned the concept of DNA for testing the paternity has not been accepted till now, the name of the mother and the father as mentioned in the birth certificate will be used to determine its parents as an evidence. The Supreme Court of India in the year 2008 came across a case named as Manji case where it held that using surrogacy for commercial purpose is permitted and accepted in India and which resulted in gaining the confidence of the foreigners for coming to India for surrogacy.^[31]

            The law commission of India has presented the 228th Report on “Requirement for Legislation to Regulate Assisted Reproductive Technology Clinics just as Rights and Obligation of Parties to a surrogacy.”^[32] The primary perceptions had been made by the law commission are as: Surrogacy courses of action will keep on being represented by contracts among parties, however such an arrangement ought not to be for business purposes. A surrogacy course of action ought to accommodate the monetary help for substitute child in case of death of the dispatching couple or individual before conveyance of the child. A surrogacy agreement ought to essentially deal with insurance of life protection spread for substitute mother. Enactment itself ought to perceive surrogate child to be real child. The certificate of the birth of the child ought to contain the name(s) of the intended parent(s) as it were. The donor right of secrecy as well as of the right of the surrogate mother ought to be ensured. Sex particular surrogacy ought to be restricted. Instances of fetus removal ought to be administered by Medical Termination of Pregnancy act 1971 only.^[33]

            As indicated by Kimbrell (1988) that most of the women engage themselves in surrogacy because of the monetary help. The women who agreed for surrogacy are mostly uninformed of their legitimate rights and because of their money related circumstance they can’t bear the cost of the administrations of lawyers.^[34]

            Horsburgh (1993) accepts surrogate mothers are physically abused once they have sign agreements consenting to bring the child into the world for the intended parents. To exacerbate the situation, if the pregnancy is without a doubt prematurely ended, the surrogate mothers get only a small amount of the first installment of the original amount. The agreements can likewise put obligation on the mother for dangers including pregnancy-initiated illnesses, passing and complications arising after pregnancy.^[35]

            Foster (1987) states that numerous substitute mothers face enthusiastic issues subsequent to relinquishment of the child. Be that as it may, an examination by Jadva et al. (2003) demonstrated that substitute moms don’t seem to encounter mental issues because of the arrangements of surrogacy. Despite the fact that it is recognized that a few women experience passionate issues in giving over the infant or because of the responses around them, these emotions seemed to diminish during the weeks following the birth.^[36]

CONCLUSION AND SUGGESTIONS

            In India, surrogacy is absolutely a legally binding comprehension between the gatherings so care must be taken while drafting understanding with the goal that it doesn’t disregard any of the laws like, e.g., focuses to be mulled over for what reason does the expected guardians decide on surrogacy, points of interest of the substitute, kind of surrogacy, referencing about paternity in the understanding, the formation of library for natural father of child in a selection cases, rules set out on how and when hereditary testing should be possible to decide paternity, pay statement, startling mis-happening to the mother, custody of that child, in regards to the jurisdiction for the debates emerging out of that agreement.

            Indian government has drafted enactment in 2008 lastly surrounded an ART guideline draft bill 2010. The bill is as yet pending and not introduced in the parliament. The proposed law needs legitimate conversation and discussion with regards to lawful, social and clinical viewpoints.

            We infer that the legislature should truly consider authorizing a law to manage surrogacy in India so as to ensure and direct couples looking for such choices. Without a secure lawful structure intended couples will constantly be deceived and the surrogated will be misused.

REFERENCES

1. Van Zyl L, van Niekerk A. Interpretations, perspectives and intentions in surrogate motherhood, available at http://www.jme.bmj.com.laneproxy.standford.edu/cgi/content/full/26/5/404.
2. Committee on ethics. ACOG committee opinion number 397, February 2008: Surrogate motherhood. Obstet Gynecol 2008.
3. Serratelli A. Surrogate motherhood contracts: should the Brirish or Canadian model fill the U.S. legislative vacuum? George Washingtoin J Int Law Econ 1993;26;633-74.
4. Brahams D. The hasty British ban on commercial surrogacy. Hastings cent Rep 1987; 17:16-9.
5. Lawrence DE. Surrogacy in California: Genetic and Gestational Right: Golden Gate University Law Review. Vol 21. 1991, available at http://www.digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1522&context-=ggulrev.
6. Kriari-Catranis I. Human assisted procreation and human rights-the Greek response to the felt necessities of the time. Eur J Health Law 2003; 10:271-80.
7. Children’s Act, 2005 (Act No. 38 of 2005) Chapter 19: Surrogate Motherhood 297. Effect of Surrogate motherhood agreement on status of child.
8. Sharma R. an International, Moral & Legal Perspective: The Call for Legalization of Surrogacy in India, available at: http://www.ssrn.com/abstract=997923.
9. Pennings G. Legal harmonization and reproductive tourism in Europe. Hum Reprod 2004; 19:2689-94.
10. On Amendments to Legal Acts of Ukraine Concerning Limitations on use of Assisted Reproduction Technologies. Draft No. 8282, available at http://gska2.rada.govua.
11. Svitnev K. Legal regulation of assisted reproduction treatment in Russia. Reprod Biomed Online 2010; 20:892-4.
12. Svitnev K. Surrogacy and its legal regulations in Russia. Reprod Biomed Online 2010.
13. Pennings G. Reply: reproductive exile versus reproductive tourism. Hum Reprod 2005.
14. Goran H. “surrogatmoderskap: Varfor-och varfor inte?” (in Swedish). Lakartidningen 2010.
15. Kevin T. The ethics of surrogacy contracts and nebraska’s surrogacy law. Vol. 41. Creighton Law Review; 2008. P. 185-206.
16. Commercial Surrogacy and fertility tourism in India, the Case of Baby Manji. The Kenan Institute of Ethics at Duke University. The case studies in ethics, available at http://web.duke.edu/kenanethics/casestudies/babymanji.pdf.
17. Van den Akker OB, Psychological trait and state characteristics, social support and attitudes to the surrogate pregnancy and baby. Hum Reprod 2007; 22:2287-95.
18. Edelmann R. Surrogacy: the psychological issues. J Reprod Inf Psychol 2004; 22:123-36.
19. Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: the experiences of surrogate mothers. Hum Reprod 2003; 18:2196-204.
20. The Human Body Shop: The Engineering and Marketing of Life, New York: Harper San Francisco;1993.
21. Honjo, Arai S, Keneko H, Ujjie T. Antenatal Depression and Maternal-Fetal Attachment. Psychology 2003; 36:304-11
22. Edelmann R. surrogacy: the psychological issues. J Reprod Inf Pychol 2004.
23. Few Basic guidelines from ICMR Guidelines, available at: http://www.blog.indiansurrogacylaw.com
24. National Guidelines for Accreditation, supervision and regulation of ART clinics in India. Available at: http://www.icmr.nic.in/art/art_clinics.htm.
25. Anirudh M. Are we exploiting the infertile couple? Indian J Med Ethics 2000; 8:24-5.
26. Surrogate mothers. American Fertility Society. Fertile Steril 1994.
27. Svitnev K. “Poster Ethics and Law”. Hum Reprod 2010.
28. Law commission of India. Report 228.2009. Available at http://surrogacylawsindia.com.
29. Available from: http://www.nt.gov.au/justice/policycoord/documents/polcoord_surogacy_consultationpaper.pdf.pdf#search=%22surrogacy%22.
30. Available from: http://www.nt.gov.au/justice/policycoord/doc/surrogacy.pdf.
31. Surrogate motherhood- Ethical or commercial, Centre for Social Research (CSR) 2, Nelson Mandela Marg, Vasant Kunj-110070. Available at: http://www.womenleadership.in/Csr/SurrogacyReport.pdf
32. Singh KK. Human genome and human rights: An overview. J Indian Law Inst 2008; 50:67-80.

[1] Van Zyl L, van Niekerk A. Interpretations, perspectives and intentions in surrogate motherhood, available at http://www.jme.bmj.com.laneproxy.standford.edu/cgi/content/full/26/5/404.

[2] Committee on ethics. ACOG committee opinion number 397, February 2008: Surrogate motherhood. Obstet Gynecol 2008.

[3] SErratelli A. Surrogate motherhood contracts: should the Brirish or Canadian model fill the U.S. legislative vacuum? George Washington J Int Law Econ 1993;26;633-74.

[4]Brahams D. The hasty British ban on commercial surrogacy. Hastings cent Rep 1987; 17:16-9.

[5] Lawrence DE. Surrogacy in California: Genetic and Gestational Right: Golden Gate University Law Review. Vol 21. 1991, available at http://www.digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1522&context-=ggulrev.

[6] Kriari-Catranis I. Human assisted procreation and human rights-the Greek response to the felt necessities of the time. Eur J Health Law 2003; 10:271-80.

[7] Children’s Act, 2005 (Act No. 38 of 2005) Chapter 19: Surrogate Motherhood 297. Effect of Surrogate motherhood agreement on status of child.

[8] Sharma R. an International, Moral & Legal Perspective:  The Call for Legalization of Surrogacy in India, available at: http://www.ssrn.com/abstract=997923.

[9] Pennings G. Legal harmonization and reproductive tourism in Europe. Hum Reprod 2004; 19:2689-94.

[10] Ibid.

[11] Ukraine. On Amendments to Legal Acts of Ukraine Concerning Limitations on use of Assisted Reproduction Technologies. Draft No. 8282, available at http://gska2.rada.govua.

[12] Svitnev K. Legal regulation of assisted reproduction treatment in Russia. Reprod Biomed Online 2010; 20:892-4.

[13] Svitnev K. Surrogacy and its legal regulations in Russia. Reprod Biomed Online 2010.

[14] Pennings G. Reply: reproductive exile versus reproductive tourism. Hum Reprod 2005.

[15] Ibid.

[16] Goran H. “surrogatmoderskap: Varfor-och varfor inte?” (in Swedish). Lakartidningen 2010.

[17] Supra 9.

[18] Supra 14.

[19] Kevin T. The ethics of surrogacy contracts and nebraska’s surrogacy law. Vol. 41. Creighton Law Review; 2008. pp. 185-206.

[20] Commercial Surrogacy and fertility tourism in India, the Case of Baby Manji. The Kenan Institute of Ethics at Duke University. The case studies in ethics, available at http://web.duke.edu/kenanethics/casestudies/babymanji.pdf.

[21] Van den Akker OB, Psychological trait and state characteristics, social support and attitudes to the surrogate pregnancy and baby. Hum Reprod 2007; 22:2287-95.

[22] Edelmann R. Surrogacy: the psychological issues. J Reprod Inf Psychol 2004; 22:123-36.

[23] Jadva V, Murray C, Lycett E, MacCallum F, Golombok S. Surrogacy: the experiences of surrogate mothers. Hum Reprod 2003; 18:2196-204.

[24] Kimbrell. The Human Body Shop: The Engineering and Marketing of Life, New York: Harper San Francisco;1993.

[25] Honjo, Arai S, Keneko H, Ujjie T. Antenatal Depression and Maternal-Fetal Attachment. Psychology 2003; 36:304-11.

[26] Edelmann R. surrogacy: the psychological issues. J Reprod Inf Pychol 2004.

[27] Few Basic guidelines from ICMR Guidelines, available at: http://www.blog.indiansurrogacylaw.com

[28] National Guidelines for Accreditation, supervision and regulation of ART clinics in India. Available at: http://www.icmr.nic.in/art/art_clinics.htm.

[29] Anirudh M. Are we exploiting the infertile couple? Indian J Med Ethics 2000; 8:24-5.

[30] Surrogate mothers. American Fertility Society. Fertile Steril 1994.

[31] Svitnev K. “Poster Ethics and Law”. Hum Reprod 2010.

[32] Law commission of India. Report 228.2009. Available at http://surrogacylawsindia.com.

[33]Available from – http://www.nt.gov.au/justice/policycoord/documents/polcoord_surogacy_consultationpaper.pdf.pdf#search=%22surrogacy%22.

[34] Available from: http://www.nt.gov.au/justice/policycoord/doc/surrogacy.pdf.

[35] Surrogate motherhood- Ethical or commercial, Centre for Social Research (CSR) 2, Nelson Mandela Marg, Vasant Kunj-110070. Available at: http://www.womenleadership.in/Csr/SurrogacyReport.pdf

[36] Singh KK. Human genome and human rights: An overview. J Indian Law Inst. 2008; 50:67-80.

Authored By:

POONAM TYAGI

Research Scholar, Shobhit Deemed University, Meerut, Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post Rights of Surrogate Mother: Indian Perspective appeared first on Legal Desire Media and Insights.

The quality and significance of media in Democracy is very much perceived. Article 19(1) (a) of the Indian Constitution, which gives the right to speak freely of discourse and articulation incorporates inside its ambit, Freedom of press. The presence of a free, autonomous and strong media is the foundation of an acceptable democracy, particularly of an exceptionally blended society like India. Media isn’t just a medium to communicate once emotions, suppositions and perspectives, however it is likewise mindful and instrumental for building conclusions and perspectives on different subjects of territorial, national and universal plan. The vital job of the media is its capacity to prepare the considering procedure millions. The criminal equity framework in this nation has numerous lacunae which are utilized by the rich and amazing to go without any penalty. Figures represent themselves for this situation as does the conviction rate in our nation which is wretchedly low at 4 percent. In such conditions the media assumes an urgent job in activating popular conclusion as well as uncovering treacheries which in all probability would have gone unnoticed in any case.

Keywords:  Trial by media, Indian Constitution, Freedom of Speech.

INTRODUCTION

Blackstonian idea of opportunity of press which was expressed as early as in 1769 contained four essential points[1] which even to this date stands the test of time to structure the essence of the idea of press opportunity. They are as per the following:

• Liberty of the press is essential to the state;
• No previous restraints should be placed on the publications;
• That does not mean there is press freedom for doing what is prohibited by law;
• Every freeman has the undoubted right to lay what sentiment he places before the public, but if he publishes what is improper, mischievous or illegal he must take the consequence of his own temerity.

It cannot be denied that it is of paramount importance that a perilous balance between the fundamental right to expression and the right to one’s privacy be maintained. The second practice which is a really a kind of abuse, has become more of a daily occurrence now is that of Media trials and curated by media houses to be telecasted for prime-time slots for enhanced trps. Earlier it was actually an ardent attempt to show to the public at large the truth about ongoing famous cases, but now has become a commercial practice interfering dangerously with the judiciary. The following observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others[2]  are true reminiscence of the limits of freedom of press with respect to the right to privacy.

The Concept of ‘press freedom’ has created a multitude of implications especially in the legal domain and as result have many cascading effect and hence they are not confined to the constitutional provisions alone. Various façade of this effect is inter alia on various laws like criminal law, Copyright Act, Official Secrets Act, Freedom of Information Act, Law of torts, and so forth, to give some examples.

These legislations govern the limits of legality for some of the most important and pertinent issues like those of decency or morality, the issue of privacy and right to information, defamation etc. Issues arising due to investigative journalism are also dealt with by these legislations. There are also exclusive media laws like Working Journalists Act, Press Councils Acts, Newspapers Act, Press and Registration of Books Act etc. The Press Councils Act created the quasi-judicial body- Press Council of India. Basic issues relating to Article 19(1)(a) personal liberties and the principles of natural justice need to be settled. Existing privilege laws are a bit too ambiguous and expansive in nature as it doesn’t define what exactly constitutes a breach of privilege or Contempt of House. Hence the need to codify privileges.

Various luminaries and independent committees have also laid out recommendations with the sole interest to safeguard journalists and professionals, from being compelled to disclose information received in confidence except when required in public interest and also against a charge of contempt of Court by permitting truth as a defense.

At this juncture, as we are advancing towards the sexagenarian age of our independence, let’s emphasis on what our former Prime Minister Late Sh. Rajiv Gandhi had said about the freedom of press in India:

            “Freedom of Press is an Article of Faith with us, sanctified by our Constitution, validated by four decades of freedom and indispensable to our future as a Nation.”

HISTORICAL BACKGROUND

The chapter on Fundamental rights, Part III in the Indian Constitution, was not joined as a well-known admission to worldwide supposition and thinking on human rights after the end of Second World War. The interest for protected certifications of human rights for Indians was made the extent that route back as in 1895 in the Constitution of India Bill, prominently called the Swaraj Bill, which was propelled by Lokmanya Tilak, a legal counselor and an extraordinary political dissident. This bill conceived for India a Constitution ensuring to each resident, among different opportunities, the opportunity of press.

To a certain degree one can stipulate that the inception of press in India was made with commercial interests in mind. It was the seed sown by the first British MNC – The East India Company. It was one of those instruments of the British, which was later controlled by the Indians to serve their purpose; as the job of the press experienced a significant change and it before long ended up being one of the best weapons Indians used in their struggle for freedom from the British. The press was consistently heavily influenced by the company, however after its press job reversal the need to brace brutal checks got inevitable. Oppressive laws were passed and decisions were given to curb the freedom of the press.

The Fathers of the Indian Constitution connected extraordinary significance to freedom of speech and expression and the freedom of the press. Their experience of black days under British rule, when the pro Indian press was oppressed by sedition trials and seizure of security deposits, taught them of the paramount importance of this right in the sovereign democratic republic which India was to be under its Constitution. They believed for a democracy to prosper, freedom of expression and the freedom of press shall always be protected. They accepted that integral to the idea of free press is opportunity of political sentiment and at the center of that opportunity lies the option to condemn the Administration. They embraced the considering Sh. Jawahar Lal Nehru who stated, “I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed and regulated press.[3]”

The Indian Constitution illustrates freedom in Article 19(1)(a) which ensures right to freedom of speech and expression. It has been held that this right to freedom of speech also includes press freedom. It is an implied or deduced right. The commercial aspects of the press are regulated under Article 19(1)(g) which provides for freedom of profession, occupation, trade or business which is restricted by Article 19(6) which incorporates arrangements for open intrigue, proficient and specialized capabilities and state nationalization-aggregate or incomplete.

As per the constitutional advisor, Dr. B.N. Rau, our constitutional adviser according to him, it was not really important to accommodate the opportunity of the press explicitly, on the grounds that opportunity of articulation would incorporate opportunity of the press.[4]  The perspectives on Dr. Ambedkar and Dr. B.N. Rau have been vindicated by the supreme Court. In a progression of choices from 1950 onwards the apex court has decided that the opportunity of press is verifiable in the assurance of the right to speak freely of discourse and articulation. Therefore opportunity of press is one of the principal rights ensured by the Indian constitution.[5]

One of the heads of limitations on the right to speak freely and articulation in the draft Constitution was sedition”, suitably portrayed by Gandhiji as the Prince of the Indian Punitive Code‟. It was much of the time conjured to smash the opportunity development and manifest political dissidents, including conspicuous pioneers like Tilak[6]  and so forth in the prime of English colonism subversion was interpreted by the privy Gathering in the instances Wallace-Johnson[7] and Sadashiv Bhalerao[8]  to incorporate any explanation that was at risk to cause, disaffection‟ , specifically, energizing in others certain hostile emotions towards the administration, in spite of the fact that there was no component of affectation to savagery or insubordination. To limit discourse under the head of „sedition‟ was irking to the designers of the Constitution.

INTERPRETATION OF FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech and expression implies the option to communicate one’s own feelings and sentiments openly by methods for composing, printing pictures or some other mode. It subsequently incorporates the declaration of one’s thoughts through any transmittable medium or noticeable portrayal, for example, motion, signs and such.[9] The articulation means likewise distributions and in this manner the opportunity of press is remembered for this class. Free engendering of thoughts is the fundamental target and this might be done on the stage or through the press. The opportunity of engendering of thoughts is made sure about by opportunity of course. Freedom of course is fundamental to the opportunity as the freedom of distribution. For sure without dissemination the distribution would be of little worth.[10]

Freedom of expression has four broad purposes to serve: –

1. It helps an individual to attain self-fulfillment;
2. It assists in the discovery of truth;
3. It strengthens the capacity of an individual in participating in decision making;
4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change

In the Romesh Thappar case the court laid down an important principle: –

            “So long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause 2 of Art 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to public security is involved, an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be unconstitutional and valid to any extent.[11]”

In this way Article 19 (2) was amended by the First Amendment of Constitution in 1951[12], which was created and enacted with retrospective effect on 18 June, 1951. Subsequently Article 19(2) of the constitution was amended by the (Sixteenth Amendment) Act, which was enacted with prospective. Therefore, by method of legal proclamations throughout the years there had been a change in perspective in the use of this article and it turned out to be to some degree of restraint on freedom of press forcing limitations by method of revisions.

PRE JUDGING THE CONCEPT OF TRIAL BY MEDIA

This idea has been glided distinctly in the ongoing years where the media having the ability to speak freely and articulation under Article 19(1)(a) utilizes the intensity of their correspondence medium to connect with the majority and scrutinize and now and again pre-judge a case under legal thought in the official courtroom which now and again sums to Maligning or Disdain of Court. The ongoing model could be the Arushi Twin Homicide case‟ where media essentially sentenced the alleged individual blamed. A few suggestions have been made on this issue in the 200th report of the Law Commission of India.

The ever-expanding propensity to utilize media while the issue is sub-judice has been looked down and frowned upon by the courts and supreme Court of India on several occasions. In Supreme Court observed in, State of Maharashtra v. Rajendra Jawanmal Gandhi[13]:

            “There is procedure established by law governing the conduct of trial of a person           accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence, he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.”

Basic tenet of justice in India is to provide for a Fair Trial, a trial free from any biases and external pressure. In order to safeguard the right of fair trial, Provisions have been laid out under the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the Constitution of India. Media is particularly concern of any censorship or restrictions which are placed on public discourse or publication of matters relating to the essential facts of a case pending before a Court. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a ‘fair trial’ or anything which impairs the impartiality of the Court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding.

RESTRAIN ON FREEDOM OF SPEECH & EXPRESSION

Some restrictions have been imposed on the freedom of speech and expression under article 19(2). Some of them as discussed hereunder-

1. MORALITY AND DECENCY

Important attribute on which freedom of the press can be contained within the ambit of Constitution of India is “decency and Morality”. Modern standards are not conforming with when dealing with the concepts of morality and decency. concepts like morality decency and obscenity are very subjective in nature in the ever evolving society still respected jurists and the court of the land have attributed the facets within the ambit of Sections 292 to 294 of the IPC deal with this restriction.

      The aforementioned conundrum is a point of pain for the natural understanding among the masses we use nudity and vulgarity inter alia with obscenity whereas honorable court has clearly ruled in the landmark case of The Bandit Queen[14] , that strictly under the laid out law of the land both nudity and vulgarity cannot be attributed with obscenity.

1. DEFAMATION

If any man’s reputation is hurt or gets injured by a statement, then it amounts to Defamation. Defamation as a crime has been codified under section 499 Indian Penal code. Under civil law we follow precedent of courts since it is not codified under any civil law. Since press and media plays in the space of public discourse hence it is considered that strict libel laws can have devastating effect on freedom of press, as also described in the landmark case of New York Times v Suvillian[15]  by the supreme court of USA where it has ruled that every inaccurate statement when is found not to be backed with malice, is not warranted for a legal action. Prime Reason for drawing such a strong line was to maintain a balance for free debate in a healthy democracy where sometimes statements are made in the heat of the moment and are actually not judged with proper prudence by the speaker and as such m should be considered and be tolerated, for survival “freedom of expression needs to have some space for breathing”

      The Supreme Court of India was of the same view and held that in R. Rajagopal v State of TN[16]  (Auto Shanker Case).

1. CONTEMPT OF COURT

Contempt of court is like a rider or restriction on freedom given to media and press along with freedom of expression. No unreasonable restrictions is imposed on the right to freedom of speech and is actually saved under Art 19(2)[17]  we can deduce this fact because Supreme Court has upheld the constitutionality of the Contempt of Court Act, 1952  on the similar ground as stated above. Courts have many a time expressed displeasure towards press and media when the said fourth pillar tries to pass verdicts of the ongoing case. The High Court of Punjab decided that, freedom of the press is subordinate to the administration of equity”. The duty of each and every journalist is to deliver fair news and not to give their opinion on the subject matter which is prejudice in the court of law or give verdict on any particular case.[18]

      In Today’s India law of contempt is such, that the country which follows ‘satyameva jayate’ ,there is no defense from contempt not even the truth.[19]  Anomaly of this kind is very peculiar. Article 361-A of the Indian Constitution likewise manages contempt which was embedded after the Forty Fourth Amendment Act, 1978.

1. SOVEREIGNTY AND INTEGRITY OF INDIA

Several rulers and kingdom existed in India at the time of independence which were merged in a United India for a better future. Still many families still reserved the right to use title land and palaces from their past glory days and that gave birth to an idea of mutiny among many for political and personal reasons and on 21^st January, 1963 a bill was introduced in the Lok sabha by then Law Minister Ashoke K umar Sen to safeguard Sovereignty and integrity of India as a ground under Article19(2) for restricting the freedom under Article 19(1)(a) was added by amendment.[20] Main purpose of the amendment was to provide special power to parliament, so that it can legislate on this subject without having been put in a position where parliament would have to face a constitutional challenge on the ground that the legislation was ultra vires due to the presence of Article19(1)(a).

1. SECURITY OF THE STATE AND PUBLIC ORDER

The concept of Public order, law and Security of the State are like three concentric circles, also these are not equal articulation, in this description law and order representing the largest circle, within which lies the next circle representing public order and within which is the smallest circle representing security of State. Thus, an act which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State.

      The supreme court of India while explaining the section 4 of the Press (Emergency Powers) Act, 1931, held in State of Bihar v. Shaialabla Devi[21] that the words that deal with the visible representation, signs or words that are used to which encourage or incite or tend to encourage or tend to incite to commit any offence of violence or murder, the Supreme Court held that any expression or speech which encourages or incite the commission of any hilarious crimes such as breaching the security of the county or State or murder are dealt under clause 2 of Article 19.

1. FRIENDLY RELATIONS WITH FOREIGN STATES

This ground was additionally included by the constitution through (1st Amendment) Act, 1951. The article behind the arrangement is to forbid unreasonable pernicious promulgation against a remote agreeable state which may risk the support of good relations among India and that state. No comparative arrangement is available in some other Constitution of the world. Limitations under this classification would incorporate criticism of remote dignitaries as well as purposeful publicity for adversaries to expert in an outside state after India has perceived a specific expert in that state, or promulgation for war with a state content with India. At present there is no particular enactment regarding this matter. Be that as it may, an assortment of resolutions contains limitations on types of articulation which would adverse effect amicable relations with alien states.

OUTCOME

The crux of it all is that large majority still puts large reliance on the media for information and what’s happening in the society on daily basis. an individual can hardly procure information for himself, information which helps him to become a healthy part of the society where the knowledge of right and duties of an individual helps in creating a balance for an ideal society. But since procuring such news is hard for an individual hence press and media acts as a custodian of the society by broadcasting and distributing such news. Media plays an important role in the society because it becomes the voice of all especially who’s who show dissent and are often suppressed. Hence freedom of the press has a dimension and range that is vastly different from the ambit and content of other individual freedoms. Press freedom embodies the principle of accountability and thus enables press to be an instrument of democratic control. Protection and promotion of free press is substance sub serves and strengthens democracy, an essential feature of the Constitution.

Based on rule of law, the press must have freedom and it also created a more vibrant and strong democracy. Still freedom of press is not absolute. Since press play in the public domain and thus it has to obey with stringent procedures, utmost responsibilities towards the society and with grave caution.

Joseph Pulitzer rightly opined, that “commercialism has a legitimate place in a newspaper”. Pulitzer said, without high ethical ideals a newspaper is not only stripped of its splendid possibilities for public service, but may become a public danger to the community”[22] .press and media must work with a moral compass, legal strictness and curtailing of press freedom must only come in action once press diverges from the path of being the torch bearer of the society and starts to completely walk on the evil path of misinformation. Different governments and administration from all ages of human existence have used carrot and stick methods”[23]. In the most penultimate analysis, truth of press freedom is seen by the struggles and in emphatic victories for the cause of press freedom by its champions, they must remember Benjamin franklin’s glorious word to his compatriots:

            “They who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety”[24] 

REFERENCES

1. Press and the Law (1990) by Justice A.N. Grover; pg. 7 para 2 2.
2. (1994) 6 SCC 632.
3. Nehru’s speech on 20th June 1916 in protest against the press Act, 1910.
4. Shiva Rao, The Framing of India’s Constitution: A Study, pp. 219-20.
5. Brij Bhushan v State of Delhi; AIR 1950 SC 129 6.
6. 25 IA 1
7. 1940 AC 231.
8. AIR 1947 PC 82.
9. Lowell v Griffin, (1939) 303 US 444.
10. Romesh Thappar v State of Madras, AIR 1950 SC 124
11. Ibid
12. “Nothing in sub clause (a) of clause (i) shall effect the operation of any existing law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by the said sub clause in the interest of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
13. AIR 1997 SC 8986.
14. Bobby Art International v Om Pal Singh Hoon, (1996) 4 SCC 1 15.
15. 376 US 254.
16. (1994) 6 SCC 632 at 649.
17. K. Daphtary v O.P Gupta, AIR 1971 SC 1132.
18. Rao Harnarain v Gumori Ram, AIR 1958 Punj. 273.
19. Bijoyananda v Bala Krishna AIR 1953 Ori 249.
20. Inserted by the Constitution (Sixteenth Amendment) Act, 1963, Section 2. 21.
21. AIR 1952 SC 329.
22. Gerald Gross (ed.), the Responsibility of the Press, Clarion Books, New York,1966, pp.39-40.
23. Indian Express Newspapers v Union of India, (1985) 1 SCC 641.
24. Referred to in Soli J. Sorabjee, supra 50 at p.25.

[1] Press and the Laws (1990) by Justice A.N. Grover, pg. 7 para 2.

[2] (1994) 6 SCC 632.

[3] Nehru’s speech on 20^th June 1916 in protest against the press Act, 1910.

[4] B. Shiv Rao, the Framing of India’s Constitution: A study, pp. 219-20.

[5] Brij Bhushan v. state of Delhi; AIR 1950 SC 124.

[6] 25 IA 1.

[7] 1940 AC 231.

[8] AIR 1947 PC 82.

[9] Lowell v. Griffin, (1939) 303 US 444.

[10] Romesh Thappar v State of Madras, AIR 1950 SC 124.

[11] Ibid.

[12] “Nothing in sub clause (a) of the clause (i) shall effect in the operation of any existing law or prevent the state from making any la, in so far as such law imposes reasonable restrictions on the exercise of the rights conferred by the said sub clause in the interest of the security of the state, friendly relations with foreign states, public order, decency or morality or in relation of contempt of court, defamation or incitement to an offence.”

[13] AIR 1997 SC 8986.

[14] Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.

[15] 376 US 254.

[16] (1994) 6 SCC 632 at 649.

[17] C.K Daphtary v. O.P. Gupta, AIR 1971 SC 1132.

[18] Rao Harnarain v. Gumori Ram, AIR 1958 Punj. 273.

[19] Bijoyananda v Bala Krishnan, AIR 1953 Ori 249.

[20] Inserted by the constitution (Sixteenth Amendment) Act, 1963, Section 2.

[21] AIR 1952 SC 329.

[22] Gerald Gross (ed.) the Responsibility of the Press, Clarion Books, New York, 1966, pp. 39-40.

[23] Indian Express Newspapers v. Union of India, (1985) 1 SCC 641.

[24] Referred to in Soli J. Sorabjee, supra n. 50 at p. 25.

Authored by: ANJUM SAXENA
Research Scholar, Shobhit Deemed University, Meerut, Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post CONFLICT OF TRIAL BY MEDIA WITH FREEDOM OF SPEECH AND EXPRESSION IN CONTEXT OF INDIA: CRITICAL ANALYSIS appeared first on Legal Desire Media and Insights.

Some activities are too dangerous to deal with, and yet the law still allows such activities to continue due to their role in the industrial development and their social utility. Often, such activities contribute to major accidents, resulting in several casualties and loss of environment. To promote exercise of necessary caution to the respective enterprises or individuals handling such hazardous activities, and to serve justice to the ones harmed during such activities, the law has made two rules of liabilities: The Absolute liability and the Strict liability.

In this research paper, we will discuss the meaning behind the word liability and compare the aforementioned two liabilities in detail by discussing their meanings, origins and landmark cases of the respective liabilities. In this paper, we will also discuss the necessity of both the liabilities and challenges faced by strict liability in the modern times as it is, after all, a 19^th century rule. Essentials and exceptions of the strict liability will also be highlighted, along with some case analysis for further clarification.

In the end, this paper concludes with the analysis of some other cases based on these two tortious liabilities and discusses the most recent case regarding these liabilities.

Keywords: Absolute liability, strict liability, potentially harmful substance, premise, liability and exceptions.

OBJECTIVES

• To analyze and compare the principles of strict liability and absolute liability;
• To study cases under strict liability and absolute liability and their differences in application.

INTRODUCTION

              Liability is one of the basic concepts in Law of Torts. In simple terms, liability can be referred as one’s legal responsibility towards something. But in the context of torts, it is based upon the principle that if an individual causes harm to another in the course of his/her action or omission, he/she would be legally and financially liable (or responsible) to the one they have caused damage to.

              Absolute liability and strict liability are the two most fundamental concepts of liability in Law of Torts, with some very minor, yet distinct differences. One can also say that the law of Absolute liability is the modified; thus, more modern version of the law of strict liability, which won’t be much far off either. While the strict liability lays off some defense, the law of absolute liability holds an individual completely liable for the fault without any limitation or exception which are still applicable in the other liability.

              Both of them may be similar in nature, but they have some key differences which is critical for any law student to know and understand. In this paper, we’ll analyze both the liabilities along with their key differences through their origin and landmark cases of each liability respectively.

ORIGIN: STRICT LIABILITY[1]

This liability first emerged in the late 19^th century, in the landmark case of Ryland’s v. Fletcher. In this case, the law of strict liability was defined as the responsibility of a person, who keeps hazardous substances on his/her premise, to be held at fault if any of the said substance escapes his/her premise and causes damage. In this type of liability, the actual ‘fault’, i.e. the person’s action or omission may very well be absent. In simple terms, it does not matter if the person is directly involved with the cause of the escape of hazardous substance; he will still be held at fault due it being his duty to exercise proper caution. Similarly, motive and intentions also do not matter in this liability.

This is mainly due to the fact that there are many such activities which can cause harm to both humans and the environment nearby, but are necessary to perform due to their social utility and importance. Thus, the responsibility of these activities lie heavily on the person whose premise these activities take place on and thus, it is their duty to practice proper precaution while handling these activities with potentially harmful substances. The law allows them to handle these only upon their accordance with proper safety measures and the doctrine of strict liability.

RYLANDS V. FLETCHER[2]

The rule in this case is based upon the concept of aversion of foreseeable damage. Only upon reasonable foreseeability and failing to avert such damage, would this liability take action.

Facts:

            The defendant (John Fletcher) was a textile entrepreneur, who owned a mill located in England’s coal-rich Lancashire area. For the energy purposes of the mill, the defendant decided to hire some contractors and engineers to construct a water reservoir in his land. Due to the presence of old shafts under the site of the construction of the water reservoir, as soon as the water filled in the said reservoir, it entered the neighbor’s i.e. the plaintiff’s (Thomas Fletcher) coal mine as that is where the unused shafts led, resulting him damages worth 937 pounds (approximately worth GBP 88,000 in present-day money). The defendant claimed it to be the result of negligence of the contractors and the engineers’ who failed to notice those shafts and block them during the construction. He had also claimed that the cause of the damage was unknown to him as he had no direct involvement during the construction.

Issues:

            The defendant was not directly involved with the whole act, thus, should he be held reliable for something he did not actively participate in or influenced upon, despite it being on his premise?

Judgement:

            The House of the Lords held the defendant liable for all the damages caused in the mine, regardless of the defendant’s plea. According to the rule based upon this case, if a person conducts any activity with a potentially dangerous substance on his/her premise, he/she will be answerable to the damage caused by the escape of the said substance, regardless of it escaping due to their negligence or not.

ORIGIN: ABSOLUTE LIABILITY

As mentioned earlier, the law of strict liability has some exceptions or the ‘defenses’ for the defendant to escape from the liability. Absolute liability, on the other hand, has the same principles as the strict liability but without those aforementioned exceptions.

The law of absolute liability first originated from the landmark case of M.C. Mehta v. Union of India[3], where the need for a more modern application of the law of strict liability was urgently required. This case clearly stated the rule that an enterprise which is engaged in an inherently dangerous activity (let it be due to the nature of the activity itself or the substance involved in the activity) is completely liable for the damage caused due to the said activity, and has to compensate to all the people affected.

M.C. MEHTA V. UNION OF INDIA (THE OLEUM GAS CASE)

Facts:

            There was a case of severe leakage of oleum gas on the 4^th and 6^th of December, 1985 in Delhi. It took place in one of the units in the enterprise of Shriram Foods and Fertilizers Industries, which belonged to the Delhi Cloth Mills, Ltd. In this incident, several people were injured while one had died, who happened to be an advocate practicing in the Tis Hazari Court. A writ petition by the way of Public Interest Litigation (PIL) was brought to the court by the advocate M.C. Mehta himself.

Issues:

            This was not the first case of gas leakage that happened in India which resulted in several causalities. The major issue was that if the law of strict liability was followed, then all these mishaps arising from the conduct of such large enterprises will directly fall under the exceptions of the said liability. Thus, letting them get away without any liability for the damage they have caused during the conduct of their harmful activity. Not only would it be injustice for the ones who have suffered from the damage, but will also form the notion that big industries are immune to this liability.

Judgement:

            After the Court noted the aforementioned issues, it held to therefore, evolve a new rule; the law of ‘Absolute liability’, as coined by (then) Chief Justice of India, P.N. Bhagwati. This new rule was a more modernized, contemporary version of its other counterpart, strict liability, just without its exceptions.

ESSENTIALS AND EXCEPTIONS OF STRICT LIABILITY

ESSENTIALS OF STRICT LIABILITY

There are certain essentials or ‘qualifications’ which determine whether or not a liability is strict liability. These essentials are as follows:

1. POTENTIALLY HARMFUL SUBSTANCE

In simple terms, if the substance that has capability to cause potential damage to the environment or people nearby escapes from the premise, then the defendant will be liable. For example: The water in the reservoir in Ryland’s vs. Fletcher case.

2. ESCAPING FROM THE PREMISE

One of the most important essential for strict liability is that the potentially harmful substance must escape from the premise of the defendant and it should not be in reach or capability to stop, once it escapes.

3. NON-NATURAL USE OF LAND

This simply means that there must be some special use (activity) of land that increases the danger of damage to others nearby. It must not be the ordinary use of land or use as is proper for the common benefit of community.

      These are the three essentials of strict liability. The issue being that only when every single one of these essentials are satisfied, would the liability be termed as strict liability.

EXCEPTIONS OF STRICT LIABILITY

            Exceptions are mostly a set of defenses or ‘excuses’ that the defendant can plea to escape strict liability, only if his/her actions have qualified a specific set of conditions respective to each defense mentioned. Each defense depends on the facts of the case and can change in accordingly. The ones given below are the major exceptions of the law of strict liability:

1. ASSUMPTION OF THE RISK

This exception has the same principle as the tortious maxim volenti non-fit injuria. In simple terms, this means that the plaintiff or the claimant was aware of the risks of the activity involving the potentially harmful substance and had voluntarily associated with it despite its full knowledge. Thus, it can also be interpreted that the plaintiff consented to being harmed by the defendant due to which, he is not allowed to complain regarding that, as no one can enforce a right which he/she has voluntarily waived or abandoned.

2. DEFAULT OF THE PLAINTIFF

If the damage caused to the plaintiff is solely because of the act or default of the plaintiff himself/herself, there is no remedy for him/her.

3. ACT OF GOD

The Act of God or Vis Majeure can be described as an event which is directly and exclusively resulted from the natural causes that were not foreseeable or preventable by the exercise of proper precaution by the defendant. Thus, if the potentially harmful substance escapes the premise due to some natural cause and without any human intervention, then the defendant will not be liable.

4. ACT OF A THIRD PARTY

When the damages are caused due to a third party who is not affiliated with the defendant in any way, such as: servant, worker, secretary, contractor, etc., then the defendant cannot be held liable; unless the act of the third party is foreseeable and the defendant did not exercise proper caution to avoid that act.

5. STATUTORY AUTHORITY

When an act is done under the authority of a statute, it exempts the defendant from any tortious liability. In such case, the injured party has no remedy except for claiming the compensation provided under the statute itself. The damage caused due to such an act is not actionable due to the legislature authorizing it. However, the defense cannot be pleaded if there is any kind of negligence on the part of the defendant or if the damage is considered to be foreseeable.

      These are the major five exceptions of the law of strict liability, due to which defendants can escape the liability. In contemporary times, these exceptions stood out as a major flaw, especially in cases where large enterprises and industries can plead them to escape liability.

NECESSITY OF ABSOLUTE LIABILITY

As mentioned above, the law of strict liability is subjected to many exceptions; thus, enabling many such cases where individuals escape the liability and the damage done to the environment and people is left behind with injustice. That is why in India, legal opinion turned in favor of adopting a more stringent rule, especially after the Bhopal gas tragedy of 1984 and the consecutive oleum gas leak case that occurred just after a year later after the aforementioned mass accident.

After analyzing the old 19^th century law and the need of modification of it, the apex court of India in the M.C. Mehta v. Union of India (The Oleum Gas leak case) stated that,       “Moreover the principle so established in Ryland v. Fletcher of strict liability cannot be used in the modern world, as the very principle was evolved in 19th century, and in the period when the industrial revolution has just begun, this two century old principle of tortuous liability cannot be taken as it is in the modern world without modifications.”[4]

1. Bhagwati further stated that the law of strict liability had emerged in a time period when the nature of the industrial development was at its initial stage, thus it did not account for the current contemporary situations or the economic and social structure of the current society, thus, was unable to be adapted in accordance to it. In today’s modern society where inherently dangerous industries were necessary to carry out development programme for the social utility, the old rule is almost impossible to be held relevant in such context. The same was agreed by the Division Bench of Andhra Pradesh High Court in the case of K. Nagireddi v. Union of India.[5]

Furthermore, in a rapidly globalizing country like India, which is the country this modified liability originated from, the technological complexity and nature of industrial revolution increases at a high rate. All this not only affects the economic stability of the country, but the social status as well. The inclusion of Multinational Corporations in the jurisdiction, at this point, is necessary and inevitable. Also the fact that the industrial development cannot take place without dealing with substances which are essentially harmful or hazardous in nature also highlights the need to put on responsibility on the shoulders of such enterprises for the protection of the people as well as nearby environment from any kind of damage by the escape of the harmful substance.

This is why the law of strict liability was seen as outdated, and was modified into the rule of absolute liability by the Supreme Court in the Oleum Gas leak case. It was expressly declared that the new rule was not to have any exceptions listed under the strict liability, and the Court justified it with the two reasons that:

• The industry dealing with such potentially harmful substance for their own private profits are to be under social obligation to compensate those who it had harmed during or resulted due to any activity dealing with the said substance;
• The industry alone has such resources that can be used to discover and protect such hazardous substances, thus it is their duty to maintain the utmost precaution available to

The Court further explained, “If the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads… This principle is also sustainable on the ground that the enterprise also has the resource to discover and guard against hazards or dangers and to provide warning against potential hazard.”[6]

DIFFERENCE BETWEEN STRICT LIABILITY AND ABSOLUTE LIABILITY

The four key differences between the rules of strict liability and absolute liability were laid down by the Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak case) as follows:

1. The most evident difference between the two is the lack of exceptions in case of absolute liability, which is still present in case of law of strict liability;
2. Absolute liability only covers those enterprises who are involved with activities regarding potentially harmful substances. Any other any other activities fall under the strict liability;
3. The escape of the harmful substance from its premise is one of the necessary essential of the strict liability, whereas it is not as such in case of absolute liability. Therefore, it means that the defendant will still be liable if a person is injured inside/outside the premise due to the activities involving the hazardous substance;
4. Another essential requirement of strict liability; the non-natural use of land is not necessary in case of absolute liability. This essential simply means that even if an individual owns a potentially harmful substance which he/she uses naturally escapes, then he/she will be still held liable; even after necessary precaution was

PUBLIC LIABILITY INSURANCE ACT, 1991

Under the Public Liability Insurance Act, 1991, enterprises dealing with potentially harmful substance have to take out several policies covering liabilities for providing immediate relief to anyone who has being harmed in the course of the activity regarding the hazardous substance. This insurance is to be taken by the owner before his/her company even starts handling or dealing with the said substance. Immediate relief is provided to any person (worker, passer-by or any person in the vicinity of the accident) suffering injury or damage to property; in case of death of the said person, his/her heir are provided with the relief.

For the application of the relief, the victim or his/her family are to submit an application regarding the relief fund to the Collector within five years of the accident. A notice should be given to the owner and the insurer prior to the submission of the application; thus, giving both the parties a chance to be heard and negotiate the amount to be given for the relief. The victim, however, is still free to go to the Court in demand for higher compensation if not satisfied.

In case of non-compliance, refusal to provide relief or to take the insurance before participating in any activity regarding the hazardous substance can be punishable with imprisonment for a minimum period of 1 year and 6 months, which may extend to maximum 6 years with or without the fine which shall not be less than 1 lakh rupees. For any subsequent offences, the person can be punishable with minimum 2 years of imprisonment which can be extended to 7 years, with a fine of not less than 1 lakh rupees.

OTHER CASES

BHOPAL GAS LEAK DISASTER CASE[7]

Facts:

            On the night of 2^nd December of 1984, a mass disaster occurred in Bhopal due to the leakage of Methyl Isocyanate (MIC) and other toxic gases from the Union Carbide India Ltd, (UCIL), which is a subsidiary of Union Carbide Corporation (UCC), a multinational company registered in USA. Almost 4000 people died and lakhs of people were injured due to leakage of more than 27 tons of methyl Isocyanate and other deadly gases, turning Bhopal into a literal gas chamber. Some people permanently lost their eyes, hearing senses while some suffered from neurological disorders and scores of other complications as well as several other diseases due to the result of coming in direct contact with the hazardous gases.

Issues:

            Too many cases were filed against UCC at the same time in Indian as well as American Courts by the deceased victims’ family and by many of the affected people. So many cases that all the suits were consolidated and dismissed by Judge Keenan on the ground of forum inconvenience. Even after all this, a suit regarding this case was filed in the District of Bhopal which awarded compensation for 350 crores rupees. This amount, on an appeal to Madhya Pradesh High Court by UCC, was reduced to 250 crores rupees. However, this decision of the Madhya Pradesh High Court was also challenged by both the parties; UCC and the Union of India. All these refiling of cases led to the delay of settlement and judgement of the whole affair.

Judgement:

            The Supreme Court held down the law of absolute liability instead of strict liability for this case. The defense on the grounds of sabotage was rejected and the principle laid in the Supreme Court in the M.C. Mehta v. Union of India (oleum gas leak case) was held and followed. Furthermore, to ensure that in future, no such delay in providing compensation to the victims and their families happen, the Public Liability Insurance Act, 1991 was passed.

MADHYA PRADESH ELECTRICITY BOARD VS SHAIL KUMARI AND ORS[8]

Facts:

            The plaintiff’s husband died due to electrocution on 25^th May, 1999. According to her, her husband had gone to the field for collecting fodder on his cycle, when he came in contact with live electric wire lying on the ground which he was unable to see and was electrocuted. Southern Power Distribution Company of Andhra Pradesh Ltd. admitted that on 24^th May 1999, wire snapped due to heavy gale and rain and had fallen on sugar cane plant without touching the ground. Plaintiff’s husband, while going through the sugar cane field came into contact with the snapped conductor and got electrocuted. The Board had sanctioned an ex- gratia of amount 10,000 rupees to the family of the deceased man, which the commission found extremely inadequate.

Issues:

            The live wire falling due to strong gale and rain was not an event the Board had any influence on, and the defendant plead that the reasonable care was taken. Whether the case was to be taken as nuisance or strict liability was also in question.

Judgement:

            The Court held that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defense that the cables were disrupted due to the blowing of strong gale and rain the previous day, current found its way through the low tension cable into the premises of the plaintiff and thus, was the cause of an innocent man’s death. Thus, this could not be held as a justifiable defense. The Electricity Board was ordered to compensate the amount of 4,34,000 rupees for the electrocution of the plaintiff’s husband.

READ V. J LYONS[9]

Facts:

            The plaintiff was employed by the Ministry of Defense to inspect defendant’s factory which made explosives for the Ministry of Supply in England. During her inspection, an explosion took place due to a shell detonating, which resulted in death of one person and injuring of the plaintiff and other employees. There was no clear evidence that negligence was the cause of the explosion.

Issues:

            The products in the company were known for their ‘explosiveness’, thus, the Plaintiff was aware of the dangers, and the product did not ‘escape’ the premise. So, would the law of strict liability still apply?

Judgement:

            According to the law of strict liability set from the case of Ryland’s vs. Fletcher, there are three main essential requirements that determine if a liability is strict liability or not. In those three essentials, escape of the potentially harmful substance is included, which did not apply to this case. Judge Viscount Simon held that the ‘escape’ was an important part of the essential requirements. Thus, in this case, there was no escape from the defendant’s land as the explosion had injured the plaintiff and others inside the premises of the factory itself and hence the rule of strict liability cannot be applied. Thus, the judgement was given in favor of the defendant and no relief or compensation was awarded to the plaintiff.

VIZAG GAS LEAK CASE

Since this is the most recent case regarding these tortious liabilities, proper judgements are yet to arrive. All the information mentioned below about the case are from secondary sources such as news sites.

Facts:

            On the early morning of 7^th May, 2020, there was an industrial accident of leakage of poisonous gas, Styrene Monomer at the LG Polymers chemical plant, which is suspected to have occurred due to malfunction in the cooling system of the storage tanks of the aforementioned gas. The resulting vapor due to the leakage had spread over the nearby villages and areas in Visakhapatnam, causing more than a 1000 causalities and about 13 deaths as of current.

Upon large number of protests and panic setting in the minds of the people, the Andhra Pradesh government immediately announced an ex-gratia of the amount 1 crore rupees to the family of the deceased, jobs to one member from the family and a slew of other relief packages.

Meanwhile, the National Green Tribunal (NGT) on the 8^th of May, 2020, directed South Korean company LG Polymers India Ltd., to deposit an initial amount of ₹50 crores to the collector. The tribunal determined the amount after analyzing the company’s financial worth and the extent of damage caused by the gas leak. A bench headed by NGT Chairperson J. A.K. Goel also issued a notice to the Andhra Pradesh Pollution Control Board, Central Pollution Control Board and the Union Environment Ministry, seeking their response on the said incident by May 18, 2020.

Currently, the tribunal has invoked the case under the law of strict liability. Further judgement is yet to arrive or released to the public.

CONCLUSION AND SUGGESTIONS

There are many laws on various fields that are now considered outdated due to their restricted utility in contemporary times. One such law is the rule of strict liability, which even though is used still, has many such loopholes which can be easily exploited in today’s times. Thus, to correspond with the modern times, the rule was needed to be modified.

Absolute liability is very similar to the strict liability, but with its no-exceptions part, it avoids the exploitation and injustice to the suffering party. There was an immediate and inherent need for such a principle as the rule of strict liability cannot be taken as the sole principle to provide for compensation as it has been formulated about two centuries ago, when the level of technological development was just at its initial stage, in comparison with today’s overall development.

However, there is still need of some improvement, in case of the law of absolute liability. As mentioned before in the paper, the principle of absolute liability offers a compensation to the sufferers/victims whose amount is based on the paying capacity of the enterprise. It indeed is right that this condition will help the victims to get larger compensation, but that would only apply when the industries who have the large capacity to pay so. The smaller industries would lead the consequence of smaller compensation which may not be in accordance with the damage suffered, which goes against the basic principle of the tortious liability. Thus, it is highly suggested to change the deciding element behind the amount of compensation provided, to the quantum of damages suffered by the victims at least for the smaller industries to avoid any kind of injustice to the sufferers.

Concluding, the research questions are clearly answered as such, the first part being explained in details through various cases and the second part being researched and analyzed through cases like the Oleum Gas Leak case and Bhopal Gas Tragedy case, where the victims would have faced extreme injustice if strict liability would have been applied as these industries would have escaped from the liability by pleading the exceptions of the law of strict liability which very well applied to them. This would have not only caused an uproar in the public and resulted in severe injustice to the suffers, but it also would have given the notion that big enterprises are immune to such tortious liability.

REFERENCES

Books:

• N. Pandey, Law of Torts, 9^th Edition
• S.K. Kapoor, Law of Torts, 7^th Edition
• N. Shukla, The Law of Torts, 20^th Edition

Websites:

• https://lawcirca.com/rule-of-strict-and-absolute-liability/ accessed on: 30^th April, 2020.
• https://nhrc.nic.in/press-release/death-due-electrocution-ap-show-cause-notice-southern-power-distribution-company accessed on: 3^rd May,
• http://kanoon.nearlaw.com/2017/10/18/public-liability-insurance-act-1991/ accessed on: 3^rd May,
• https://www.thehindu.com/news/national/andhra-pradesh/visakhapatnam-gas-leak- villagers-stage-protest-in-front-of-lg-polymers/article31542929.ece accessed on: 13^th May, 2020.
• https://www.thehindu.com/news/national/andhra-pradesh/visakhapatnam-gas-leak-ngt-directs-lg-polymers-india-to-deposit-50-crore/article31532759.ece accessed on: 13^th May, 2020.
• https://www.thehindu.com/news/national/visakhapatnam-gas-tragedy-ngt-cites- obsolete-law-in-gas-leak-case/article31537617.ece accessed on: 13^th May,

[1] The rule was formulated by Blackburn, J. in Exchequer Chamber in Fletcher vs. Ryland’s, (1866) L.R. 1 Ex 265.

[2] (1868) L.R. 3 H.L. 330.

[3] AIR 1987 SC 1086.

[4] W.V.H Rogers, WINFIELD AND JOLOWICZ TORTS, 8th ed. 2010 pp. 248.

[5] AIR 1982 AP 119.

[6] C.S. Mehta, Environmental Protection and Law, 2009, page no. 96.

[7] (1989) (1) SCC 674: AIR 1992 SC 248.

[8] (2002) 2 SCC 16.

[9] [1947] AC 156.

Authored By: DEBAPRIYA BISWAS

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post COMPARATIVE STUDY BETWEEN THE PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY appeared first on Legal Desire Media and Insights.

            Gender biasness had been the typical attitude of the patriarchal Indian society since time immemorial. The Vedas contained passages which emphasized the necessity of son. ‘May you be the mother of a hundred sons has always been a popular blessing by elders to young brides. It is indeed an undeniable fact that despite differences in social and intellectual status, almost all the sections of the society do stand on the same platform so far as their craving for male child is concerned. On the other hand, daughters are unwanted, they are considered burdensome and people who do not dare to carry this ‘burden’ for long dispose them off as quickly as possible, for in Incredible India, ‘killing of the girl child is no sin. Attitude has to change drastically against women in order to ensure that no violence against them takes place. They have to be treated with equality and respect. The laws have to be implemented effectively and stringent action should be taken for violators or perpetrators of violence against women. Education of women is the foremost priority of today’s parents. By educating women we help families and not only women. Two pronged strategy can be adopted. First, men have to change their attitudes so that women have enough space to develop themselves. Secondly, women themselves have to unite and spread consciousness which will help in real social development.

INTRODUCTION

            India is a country of incredible ironies. It is a land where people worship myriad forms of female Shakti in quest of wealth, wisdom and power. In this country it is a common sight to see thousands of couples making arduous journeys every year to shrines of goddesses in order to be blessed with a child. But strangely enough, in this country, a couple is said to be ‘blessed’ only when it has a male child; for a girl is never considered a blessing in our society. Her birth seems to cast a pall of gloom over the entire family. Her birth is not rejoiced, instead the entire family moans.

Gender biasness had been the typical attitude of the patriarchal Indian society since time immemorial[1]. The Vedas contained passages which emphasized the necessity of son. ‘May you be the mother of a hundred sons has always been a popular blessing by elders to young brides. It is indeed an undeniable fact that despite differences in social and intellectual status, almost all the sections of the society do stand on the same platform so far as their craving for male child is concerned. On the other hand, daughters are unwanted, they are considered burdensome and people who do not dare to carry this ‘burden’ for long dispose them off as quickly as possible, for in Incredible India, ‘killing of the girl child is no sin.’

If we look back historically, the status of women during Veda period was good. They were equal to men and had high esteem in society. But subsequently their position in society deteriorated. They began to be treated like animals, often beaten by husbands. Women were deprived from getting education. Their activities were limited to household chores and help in reproduction. A girl child born was considered to be curse in society. Husband was their Parmeswar. They had no independent existence. Their existence lay in association with men as wife, sister or mother. She was thought to be a burden as dowry was to be given. Dowry system is still rampant in our society[2]. Widows were looked down upon. System of sati was prevalent which even snatched the right to live. They had to die with their husbands on the funeral pyre. Crime against women has been on increase. It has existed in the past in almost all countries, regions, cultures and communities. The crime has much to do with the existing low status of women prevalent in our society. The violence is at various levels. It is at physical, mental, emotional, domestic and public[3]. They are the most oppressed, subjugated section of society. Though various measures at education, economic independence have been taken but they are far from improving their status which directly or indirectly help at increasing crime against women[4].

The range of crime against women is very wide including rape, wife beating, bride burning, child marriages, prostitution, sexual harassment, etc. Nowadays the girl child is killed even before the birth. This has become easy due to improvements in science and technology, e.g., amniocentesis, i.e., sex determination tests. The discrimination towards development of girl child is the greatest crime against women. They are deprived of basic educational opportunities essential for development of child. Neglect of proper nutritious food to them is quite evident. Even pregnant women do not get balanced diet which has vital effect on off springs which lead to rise in infant mortality rates. Our society has become violent today. On slightest pretext violence takes place. This is due to increasing lawlessness and formlessness in our society[5]. Our value system has gone under actuate perversions. Here, again women are the worst sufferers. For increasing violence men are to be blamed. They have become corrupt. People want to become rich employing any means. Women are denied share in property. They cannot own property. On slightest resistance they are beaten badly. Property again plays greater role in dowry. Grooms expect much from brides in the form of dowry. If they do not bring adequate dowry, they are ill-treated by the family members, especially mother-in-law[6]. The situation becomes pathetic when women do not help the other women in improving each other’s condition. Instead they are treated badly. With the spreading educational consciousness among women, some advancement can be seen on their educational achievement and economic independence. Women are able to compete with men in every profession. But this has added some problems to the working women. They are expected to do the household chores once they return from office. Tension and ego clashes are frequently evident which is not healthy for man-woman relationship[7].

Violence against women exists in various forms in all societies the world over. However, the recognition that elimination of gender- based violence is central to equality, development and peace, is recent. In India the landmark report on the ‘Status of Women-1975’ did not deal with this issue. Then in the late seventies and eighties, the Indian women’s movement focused on issues of dowry deaths, female feticide, sati, rape and other forms of violence. More recently, international conferences such as the Vienna-1993, Cairo-1994, Copenhagen 1995 and Beijing-1995 explicitly highlighted this problem. The World Health Assembly in 1996 endorsed that violence against women is a public health problem. In 1998, the 50^th anniversary of the ‘Declaration of human rights’ was celebrated by the UN with a global campaign for elimination of gender based violence. The objective was to influence public opinion and attitudes, policies, practices and legislation to facilitate a violence-free life for women.

Attitude has to change drastically against women in order to ensure that no violence against them takes place[8]. They have to be treated with equality and respect. The laws have to be implemented effectively and stringent action should be taken for violators or perpetrators of violence against women. Education of women is the foremost priority of today’s parents. By educating women we help families and not only women. Two pronged strategy can be adopted. First, men have to change their attitudes so that women have enough space to develop themselves. Secondly, women themselves have to unite and spread consciousness which will help in real social development[9]. Then only we will be in a position to eradicate the social ills prevalent in our society. We should provide conditions to make them `better half’ which can help effectively to solve the problem of violence against women.

OBJECTIVES TO PROTECT THE WOMEN

The goal of these policies is to bring about the advancement, development and empowerment of women. The Policy will be widely disseminated so as to encourage active participation of all stakeholders for achieving its goals. Specifically, the objectives of these Policies include

• Creating an environment through positive economic and social policies for full development of women to enable them to realize their full potential;
• The de-jureand de-facto enjoyment of all human rights and fundamental freedom by women on equal basis with men in all spheres – political, economic, social, cultural and civil[10];
• Equal access to participation and decision making of women in social, political and economic life of the nation;
• Equal access to women to healthcare, quality education at all levels, career and vocational guidance, employment, equal remuneration, occupational health and safety, social security and public office etc.;
• Strengthening legal systems aimed at elimination of all forms of discriminationagainst women;
• Changing societal attitudes and community practices by active participation and involvement of both men and women;
• Mainstreaming a gender perspective in the development process;
• Elimination of discrimination and all forms of violence against women and the girl child;
• Building and strengthening partnerships with civil society, particularly women’s organizations;
• Undertake, generate and promote primary and applied research regarding women and development;
• Advance the idea of women as active participants in politics and national development[11];
• Promote and collaborate with academic institutions, grass-root organizations as well as individuals engaged in research, advocacy and related activities;
• Provide advisory and consultancy services on gender issues to institutions and organizations within and outside government, including development agencies;
• Organize and assist training programs for scholars, planners, administrators, development practitioners, members of women’s organizations and/or cooperatives and civil society members;
• Undertake activities to facilitate social transformation for the full and effective participation of women at all levels of society.

REASONS FOR CRIME AGAINST WOMEN

            Women are considered as weaker section. That is why all sorts of violence are perpetrated on them. They become the easiest target and victim during conflicting situations between two groups or communities. They are unable to resist against the injustices due to weaker positions. It becomes their habit to suffer silently in homes and outside. Rape or sexual harassment takes the form of teaching a lesson to hostile groups. During communal riots or caste riots, women become the first and easiest targets. Sometimes teasing or harassing of women becomes the instigating point for two hostile groups to fight leading to violence[12].

The causes for increasing crime against women can be attributed to low status of women in our society. The attitudes towards women have not changed much. They are treated as burden and hence denied education. As per the 1991 Census, the literacy rate of women is 39% as against 63% of men. The situation is alarming among the lower castes women on literacy front. It is much lower than even 39% in some states. The sex ratio has declined from 933 in 1981 to 929 in 1991, i.e., the number of girl child born has declined which is a sad state of affairs. The women are considered as commodities. They are treated as properties. They are taken for granted. The efforts have been made to make the women dependent[13]. They are still not economically independent which has made the conditions worse for them.

It has been widely accepted nowadays that girls are emotionally more attached to parents, more responsible in society and by no means less competent than boys. However withstanding all this, the typical orthodox Indian attitude accompanied with several socio-economic-cultural factors pervading in the society has always upheld the need of male child and disfavored the birth of girl child in the family[14]. This has immensely contributed to the rampant growth of female feticide in the country, thus making India one of the worst nations in the world plagued with skewed sex ratio. The most prominent factors encouraging crime against women in India are listed below:

RELIGIOUS FACTORS

The Hindu religion lays great stress on the birth of a son. In a Hindu patriarchal society, it is the son who continues the family lineage or ‘Vansh’. According to Manu, a man cannot attain moksha unless he has a son to light his funeral pyre[15]. Also, it says a woman who gives birth to only daughters may be left in the eleventh year of marriage. Such gender biased customs and practices in the traditional Hindu society has over-emphasized the birth of sons and discouraged the birth of girl child in the family, thus paving the way for Female Feticide.

EVIL OF DOWRY

Dowry is essentially one of the factors which have encouraged the practice of Female Feticide to a great extent. Parents find it a better option to avoid the female fetuses itself than to pay exorbitant rates in the form of ‘dowry’ while marrying off their daughters. Hence in order to escape from dowry people desperately go for sex selection tests and eliminate the female fetus. To most of the couples, especially the middle-class ones, it appears that ‘paying Rs. 500 at present is better than to pay Rs.5, 00,000 in future’. Conversely, the boy is viewed an asset to fetch fabulous dowry for the parents. Hence boys are naturally preferred to girls.

FINANCIAL DEPENDENCE OF FEMALES

In India, the socio-economic background has also been the villain behind the tragic female feticide. Certain communities want to get rid of female child compelled by the circumstances of dehumanizing poverty, unemployment, superstition and illiteracy. Some men just cannot see women doing well while they themselves are unemployed or under employed. They find such women to be the cause of their failures; they nurture a grudge against them and commit crimes against them to take out their frustration. There are cases where husbands have not even left their wives to vent out their frustration, ignoring the fact that she is supporting the whole family by her earnings. Sitting at home without a job, they imagine the wife insulting them or looking down upon them because they are dependent upon her. They imagine her enjoying with other men at place of work. Unemployed men have been found beating their wives on very trivial domestic issues.

STATUS OF WOMEN

It is generally expected that sons would carry the family lineage forward, provide security and care to parents especially in old age, enhance family wealth and property and perform the last rites and rituals. Whereas daughters would go to another’s house draining out all the family wealth. Moreover, they always need to be protected, defended and taken care, thus imposing an extra burden over the family. Such conservative attitude of the Indian society which essentially regards women a ‘burden’ is one of the most potent factors which has induced strong son preference and hence encouraged Female Feticide[16]. All this factors clearly point out that the ever existing gender biasness in our country favoring the male and the stereotype notion of women as ‘burden’ is the primary cause acting behind the shocking statistics of Female Feticide in India.

THE PERSONAL CAUSES

Compared with male offenders, female offenders are on a low level of education. A lot of female offenders are illiterate or semi-literate. They haven’t social knowledge and experience, and their survival skills are poor. They lack analytical skills in dealing with problems, and they are not sensible to deal with things. When they are instigated or enticed by others, they are easy to be coerced or deceived, going astray, and beginning their life of crime. Because of the low level of education, their legal awareness is relatively weak. When they have been violated by unlawful infringements, they cannot look at and solve the problems from a legal perspective, but take extreme and violent and lawless ways to solve the problems. For example, some women themselves are victims of domestic violence, but they do not know how to use the law to protect them. They fight violence with violence, and when they cannot endure domestic violence, they will kill the perpetrators. And there will be perpetrators. In addition, psychological factors such as vanity, unrealistically compare, hedonism, narrow-minded, vindictive and so on also contributes to an important cause of female crime.

GENDER BASED VIOLENCE

There are various forms of violence against women, including physical, sexual and psychological violence perpetrated by the State, perpetrated in communities, and in families[17]. Across all settings, gender-based violence includes: gender-based killings; rape and sexual violence; forced marriage – which includes child marriage of children under 18; sexual harassment in workplaces, schools, and in public places; female genital mutilation and other harmful practices; trafficking and online violence against women; economic violence, including dowry abuse; as well as psychological abuse. Women and girls who are further marginalized because of other aspects of their identity – for example, living with disability, or being lesbian, bisexual or transgender women and girls – are more likely to be targeted by perpetrator.[18]

While these forms of violence are diverse, they are also inter-related. For example, child marriage, a practice which takes place in all regions of the world, is correlated with increased levels of domestic violence, including rape within marriage. The life-cycle approach sheds further light on the diverse forms of gender-based violence, by identifying that perpetrators target girls and women at various ages for various different kinds of violence[19].

A LACK OF PUBLIC SAFETY

Women generally aren’t protected outside their homes. The gang rape occurred on a bus, and even Indian authorities say that the country’s public places can be unsafe for women. Many streets are poorly lit, and there’s a lack of women’s toilets, a Women and Child Development Ministry report said recently. Women who drink, smoke or go to pubs are widely seen in Indian society as morally loose, and village clan councils have blamed a rise in women talking on cell phones and going to the bazaar for an increase in the incidence of rape.

ENCOURAGING RAPE VICTIMS TO COMPROMISE

            In a recent separate rape case, a 17-year-old Indian girl who was allegedly gang-raped killed herself after police pressured her to drop the case and marry one of her attackers. Rape victims are often encouraged by village elders and clan councils to “compromise” with the family of accused and drop charges — or even to marry the attacker. Such compromises are aimed at keeping the peace between families or clan groups. What’s more, a girl’s eventual prospects of marriage are thought to be more important than bringing a rapist to justice.

ALCOHOLISM

            It has become one of the main causes of crimes against women. This evil is increasing in the society rapidly. The evil effects of alcohol result in heavy damage of the mind and the body and results in susceptibility to crimes. Excessive drinking becomes the cause of in starvation for the family member assault and quarrels between husband and wife, between father and child, desertion, beating, cruelty, etc. Habitual drunkards have even molested their own daughters in the state of emotional excitement; when the normal restraints of a person disappear under the influence of drugs or drinks and their hostile and aggressive fantasies, intimately intermingled with sexual lust, are converted into irresponsible action. Alcohol – related crimes illustrate a reckless disregard of time, space and circumstances.

MARITAL MALADJUSTMENT

            A large number of crimes against women are the cause of this factor. The adjustment of the girl with comes to the family of them in laws, their working and the enlightened one is very difficult. Mothers- in- law who have the total control over the family members, they became jealous and frustrated at the independence of their daughter -in -law[20]. Indian husbands give more importance to their mothers briefing them to the wife’s protests. Temperamental maladjustment and incompatibility in ways of thinking, working, dressing up and behaving go a long very in making. The husband reacts by neglecting the wife or picks up quarrels or trivial issues. Sometimes he even deserts the wife or starts going to prostitutes for satisfying his desires.

ATTITUDES AND GENDER SCHEMAS

            Cultural myths about violence, gender scripts and roles, sexual scripts and roles, and male entitlements are represented at the individual level as attitudes and gender schemas. These hypothetical entities are expectancies that give meaning to and may even bias interpretation of ongoing experience, as well as provide a structure for the range of possible responses. Acceptance of beliefs that have been shown to foster rape has been demonstrated among a variety of Americans, including typical citizens, police officers, and judges[21]. Once a violence-supportive schema about women has developed, men are more likely to misinterpret ambiguous evidence as confirming their beliefs. SexuBottom of Formally aggressive men more strongly endorse a set of attitudes that are supportive of rape than do nonaggressive men, including myths about rape and the use of interpersonal violence as a strategy for resolving conflict. Beliefs and myths about rape may serve as rationalizations for those who commit violent acts. For example, incarcerated rapists often rationalize that their victim either desired or deserved to experience forced sexual acts. Similarly, culturally sanctioned beliefs about the rights and privileges of husbands have historically legitimized a man’s domination over his wife and warranted his use of violence to control her[22]. Men, in general, are more accepting of men abusing women, and the most culturally traditional men are the most accepting[23].

SEX AND POWER MOTIVES

            Violence against women is widely believed to be motivated by needs to dominate women. This view conjures the image of a powerful man who uses violence against women as a tool to maintain his superiority, but research suggests that the relationship is more complex. Power and control frequently underlie intimate partner violence, but the purpose of the violence may also be in response to a man’s feelings of powerlessness and inability to accept rejection[24]. It also has been argued that rape, in particular, represents fulfillment of sexual needs through violence, but research has found that motives of power and anger are more prominent in the rationalizations for sexual aggression than sexual desire. Attempts to resolve the debate about sex versus power have involved laboratory studies of men’s sexual arousal to stimuli of depictions of pure violence, pure consensual sex, and nonconsensual sex plus violence. These studies have consistently shown that some “normal” males with no known history of rape may be aroused by rape stimuli involBottom of Formving adult women, especially if the women are portrayed as enjoying the experience. However, sexually aggressive men appear to be more sexually arousal in general, either to consenting or rape and rapists respond more than nonsexual offenders to rape cues than to consenting sex cues. Sexually aggressive men openly admit that their sexual fantasies are dominated by aggressive and sadistic material.

SOCIAL LEARNING

            Social learning theory posits that humans learn social behavior by observing others’ behavior and the consequences of that behavior, forming ideas about what behaviors are appropriate, trying those behaviors, and continuing them if the results are positive. This theory does not view aggression as inevitable, but rather sees it as a social behavior that is learned and shaped by its consequences, continuing if it is reinforced. From this perspective, male violence against women endures in human societies because it is modeled both in individual families and in the society more generally and has positive results: it releases tension, leaves the perpetrator feeling better, often achieves its ends by cutting off arguments, and is rarely associated with serious punishment for the perpetrator.

HONOR KILLING

            Honor killings are often a result of strongly misogynistic views towards women, and the position of women in society. In these traditionally male-dominated societies women are dependent first on their father and then on their husband, whom they are expected to obey[25]. Women are viewed as property and not as individuals with their own agency. As such, they must submit to male authority figures in the family failure to do so can result in extreme violence as punishment[26]. Violence is seen as a way of ensuring compliance and preventing rebellion[27]. The owner of the property has the right to decide its fate. The concept of ownership has turned women into a commodity which can be exchanged, bought and sold”. In such cultures, women are not allowed to take control over their bodies and sexuality[28]. These are the property of the males of the family, the father who must ensure virginity until marriage; and then the husband to whom his wife’s sexuality is subordinated. A woman must not undermine the ownership rights of her guardian by engaging in premarital sex or adultery.

EARLY MARRIAGE

            Married teenage girls with low levels of education suffer greater risk of social isolation and domestic violence than more educated women who marry as adults. Following marriage, girls frequently relocate to their husband’s home and take on the domestic role of being a wife, which often involves relocating to another village or area. This transition may result in a young girl dropping out of school, moving away from her family and friends, and a loss of the social support that she once had. A husband’s family may also have higher expectations for the girl’s submissiveness to her husband and his family because of her youth. This sense of isolation from a support system can have severe mental health implications including depression.

            Large age gaps between the child and her spouse makes her more vulnerable to domestic violence and marital rape. Girls who marry as children face severe and life-threatening marital violence at higher rates. Husbands in child marriages are often more than ten years older than their wives[29]. This can increase the power and control a husband has over his wife and contribute to prevalence of spousal violence. Early marriage places young girls in a vulnerable situation of being completely dependent on her husband. Domestic and sexual violence from their husbands has lifelong, devastating mental health consequences for young girls because they are at a formative stage of psychological development. These mental health consequences of spousal violence can include depression and suicidal thoughts. Child brides, particularly in situations such as vain, also face social isolation, emotional abuse and discrimination in the homes of their husbands and in-laws.

ACCEPTANCE OF DOMESTIC VIOLENCE

            The Reuters Trust Law group named India one of the worst countries in the world for women this year, in part because domestic violence there is often seen as deserved. A 2012 report by UNICEF found that 57 percent of Indian boys and 53 percent of girls between the ages of 15 and 19 think wife-beating is justified[30]. A recent national family-health survey also reported that a sizable percentage of women blame themselves for beatings by their husbands.

PAINFUL CRIME REPORTING

            Improving the reporting of report crimes is a big step forward in fighting violence against women in India[31]. When a few brave-hearts seek to take that step while fighting social sanctions of various kinds, the next difficulty that they face is that of dealing with the insensitivity of the authorities.

HONOR KILLING

            In rural spaces, crimes against women are normalized to a greater extent than in urban spaces. “Family honor”, “clan or community honor”, “caste honor” sometimes serve as related factors and variables guiding the politics behind choosing targets even as women in general suffer. Lower class women, Dalit women, tribal women are the ones who not only suffer such abuses to a greater extent because of these factors but also are more oppressed in terms of exposure to the probability of seeking justice. Village units are given a certain degree of autonomy as per the law of the land, to carry on life as per their customary laws. This leads to lack of uniform laws to rein in violent and aggressive customary practices which vary across regions. Crime reporting is thus not very popular a measure in the hinterlands as a response to empowering women[32].

PATRIARCHAL SOCIETY

            It has been cited as the main cause of violence against women. Where women have a higher economic status than their husbands and are seen as having sufficient power to change traditional gender roles, risk for violence is high.

CONCLUSION

Women in modern India have faced violence in their household, place of work and in the society at larger scale. However as far as the law of land goes women has given equal right to man but the implementation of these are lacking on part of the government level. The government’s organ i.e. the legislature, the executive, the judiciary lacks intent in the past to curb the violence against women due to patriarchal mindset. Because the people who make these laws or implement these laws comes from the same society which given the women secondary status, but due to the awareness about their rights and due to their long battle for equal status now the women are getting recognition in society worldwide.

In India women are termed worse than cattle. This situation is not related to rural area but in urban area also. The problem that is faced by today’s men is that he can’t change his mindset of people; his is not willing to give respect, safety or security to the women due to his feudal mindset. The women in today’s world is beaten mercilessly without assigning any reason, she was burnt alive due to not able to providing dowry to the family of her husband, if women fails to comply to the rotten patriarchal norms of the society she can face severe consequences for that without any fault. However there are so many laws that shield women’s rights, but the efficiency of Indian’s judicial system is not hidden.

[1] Alam Aftab, “Human Rights in India: Issue and Challenges”, Raj Publications, Delhi, p.96.

[2] Gowri R. Geetha, “Elderly Women: A Study of the Unorganized Sectorˮ, Dictionary Publishing House, New Delhi, 2003, p.94.

[3] Gill K., “Hindu Women’s Right to Property in Indiaˮ, Deep and Deep Publications, New Delhi, 1986, p.175.

[4] http://www.com/article/l29- http://lawtimesjournal.in/women/voilence.html, last visited on 18/02/2020; at 8:00 am.

[5] Agrawal H.O., “International Law and Human Rightsˮ, Central Law Publications, Allahabad, 2003, p.84.

[6] Gill K., “Hindu Women’s Right to Property in Indiaˮ, Deep and Deep Publications, New Delhi, 1986, p.672.

[7] Diwan Paras, “Modern Hindu Lawˮ, Allahabad Law Agency, 2000, p.386.

[8] Dr. M. Saud Alam Qasmi, “Human Rights in Islamˮ, Aligarh Muslim University Aligarh Publication, First edition, 2005, p.935.

[9] John M. Macdonald M.D., “Rape: Offenders and their Victimsˮ, Charles C. Thomas Publisher, Springfield, USA, 1971, p.93.

[10] http://www.com/article/l29- http://lawtimesjournal.in/women/injury.html, last visited on 18/02/2020; at 8:00 am.

[11] http://www.com/article/33- http://lawtimesjournal.in/women/voilence.html, last visited on 20/03/2020; at 4:30 pm.

[12] http://www.com/article/137- http://lawtimesjournal.in/women/rape/pregnancyhtml, last visited on 9/03/2020; at 4:00 pm.

[13] John M. Macdonald M.D., “Rape: Offenders and their Victimsˮ, Charles C. Thomas Publisher, Springfield, USA, 1971, p.276.

[14] Gowri R. Geetha, “Elderly Women: A Study of the Unorganized Sectorˮ, Dictionary Publishing House, New Delhi, 2003, p.92.

[15] Kaushik Saumya, Women Welfare: “Some New Dimensionsˮ, Sarup & Sons, New Delhi, 2003, p.491.

[16] http://www.com/article/71- http://lawtimesjournal.in/women/infanticide.html, last visited on 14/03/2020; at 9:00 am.

[17] Gowri R. Geetha, “Elderly Women: A Study of the Unorganized Sectorˮ, Dictionary Publishing House, New Delhi, 2003, p.687.

[18] Kaushik Saumya, Women Welfare: “Some New Dimensionsˮ, Sarup & Sons, New Delhi, 2003, p.199.

[19] http://www.com/article/71- http://lawtimesjournal.in/women/infanticide.html, last visited on 14/03/2020; at 9:00 am.

[20] http://www.com/article/71- http://lawtimesjournal.in/women/infanticide.html, last visited on 14/03/2020; at 9:00 am.

[21] Mehta R., “The Western Educated Hindu Womenˮ, Asia Publishing House, Bombay, 1970, p.93.

[22] Gill K., “Hindu Women’s Right to Property in Indiaˮ, Deep and Deep Publications, New Delhi, 1986, p.93.

[23] http://www.com/article/71- http://lawtimesjournal.in/women/infanticide.html, last visited on 14/03/2020; at 9:00 am.

[24] Gowri R. Geetha, “Elderly Women: A Study of the Unorganized Sectorˮ, Dictionary Publishing House, New Delhi, 2003, p.35

[25] Kaushik Saumya, Women Welfare: “Some New Dimensionsˮ, Sarup & Sons, New Delhi, 2003, p.475.

[26] Mehta R., “The Western Educated Hindu Womenˮ, Asia Publishing House, Bombay, 1970, p.891.

[27] Gonsalves Lena, “Women and Human Rightsˮ, APH Publishing Corp. Delhi, 2001, p.238.

[28] Kaushik Saumya, Women Welfare: “Some New Dimensionsˮ, Sarup & Sons, New Delhi, 2003, p. 84.

[29] Gill K., “Hindu Women’s Right to Property in Indiaˮ, Deep and Deep Publications, New Delhi, 1986, p.561.

[30] Mehta R., “The Western Educated Hindu Womenˮ, Asia Publishing House, Bombay, 1970, p.421.

[31] Gonsalves Lena, “Women and Human Rightsˮ, APH Publishing Corp. Delhi, 2001, p.213.

[32] http://www.com/article/71- http://lawtimesjournal.in/women/infanticide.html, last visited on 14/03/2020; at 9:00 am.

Authored By: SAKSHI GUPTA

Research Scholar, Subharti Institute of Law, Meerut, Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post AN ANALYSIS OF CRIME AGAINST WOMEN IN INDIA appeared first on Legal Desire Media and Insights.

Whereas Article 370, that restricted purchase and inheritance of property to permanent residents[1], was scrapped for J&K, similar provisions are also provided in Article 371 for many states in Constitution. Article 371A bars anyone who isn’t a resident from acquiring land in Nagaland, which can solely be bought by specific social group who are residents of the Nagaland. Article 371F bequeaths on Sikkim government the possession of all land within the jurisdiction, even though if it had been owned by non- public individuals before the state’s merger[2] with ours. A similar Constitutional provision commands a four-year tenure for the state assembly of Sikkim, even though assembly elections within the state have profaned that clause as they need been command once five years. Moreover, Article 371F states that “neither the Supreme Court nor alternative [other court] shall have jurisdiction in respect of any dispute or other matter arising out of any, agreement, engagement, treaty or different similar instrument about Sikkim”. However, a particular condition permits the President[3] to step in if the requirement arises associated with constitutional law. Each Article 371A and Article 371G limit the Parliament’s authority to enact any law that interferes with specific social religious laws particularly tribal laws, customs, as well as their justice system. These provisions are alike to provisions in article 370 ,however one article is abrogated citing slogans like One Country ,One Law[4] and Sovereignty of nation but continuation of comparable article forced us to ponder why government and authorities are taking approaches which are very different to each other and what are their argument to back their stance and of course this research work will also try ponder politics behind it. The safety scenario in some of the north-eastern states has remained concerned for a long time attributable to variety of militant outfits and their various demands. Manipur, Nagaland and Assam have unceasingly been some extent of worry. Tripura and Mizoram have shown exceptional success in fixing insurgency and currently they are mostly peaceful for quite very long time. Government has signed ceasefire and cease of counter Operations with most of the insurgent armies within the region. Government has steady pursued the policy of talk and negotiations with any outfit that agrees to leave the trail of violence and are available forward for peace-talks within the limit of constitutional framework of India. In general, the safety scenario in most of the north-eastern states has shown good improvement throughout the last five years. Naga Peace Accord is result of such negotiations and talks that goes well into geo-political condition of North-East and hopefully can bring development n peace to the region.

Keywords: Treaty, Enact, Provision, Sovereignty, Transitional, Convention, Customary, Amendments, Obligatory, Abrogate, ILP, CAA, Entrust, Accord, Insurgency, AFSPA- “Armed.

OBJECTIVE

            To know what Article 371, of Indian Constitution is; which areas of our country falls under it, what are special powers it provides to them and how it is different of article 370 and finally why it is still continuing while article 370[5] is repealed despite being similar to each other. This research work also tends to explore reasons for insurgencies and conflict in North-East and how decades long effort of Indian government yielding peace as evident from Naga Peace Accord and ongoing peace talks between other rebel groups and Indian government.

HYPOTHESIS

            There should not be a two different approach towards Articles of similar nature. Article 371 also provide special provisions to areas under it as Article 370 specially 371A and 371G. However geo-political condition of North-East is quite different from other parts of country as its geographical terrain and longstanding conflicts and ongoing insurgencies has done adverse effect on development of region.

WHAT IS ARTICLE 371 OF INDIAN CONSTITUTION

            Article 371 of the Constitution includes “special provisions” for eleven states, as well as six other states of the Northeast. Articles 370 and 371 were part of the Constitution of India at the time of its commencement on January 26, 1950; Articles 371A through 371J were incorporated afterwards.

“Articles 369 to 392 appear in Part XXI of the Constitution, titled ‘Temporary, Transitional and Special Provisions’.”

1. ARTICLE 371, MAHARASHTRA AND GUJARAT –

Governor has “special responsibility” to determine “separate development boards” for “Marathwada, Vidarbha, and the remaining of Maharashtra”, and Saurashtra and Kutch in state of Gujarat; guarantee “equitable arrangement of funds for developmental expenditure over the aforementioned areas”, and “equitable arrangement providing adequate facilities for technical education and vocational education, and adequate opportunities for employment” under the state regime.

2. ARTICLE 371A (13TH AMENDMENT ACT, 1962), NAGALAND –

Inserted after a “16-point agreement between the Centre and the Naga People’s Convention in 1960, which led to the creation of Nagaland[6] in 1963”.

Article 371(A) states that “No act of Parliament shall apply to the State of Nagaland in respect of the religious or social practices of the Nagas, its customary law and procedure, administration of civil and criminal justice involving decisions in line with Naga customary law and possession and transfer of land and its resources.”

It shall apply to Nagaland solely when the State Assembly passes a resolution to do so, it says.

3. ARTICLE 371B (22ND AMENDMENT ACT, 1969), ASSAM –

Article 371B deals with special provision with relevancy the State of Assam. The President could offer for the constitution and functions of a committee of the Assembly consisting of members elected from the state’s specific social group areas.

4. ARTICLE 371C (27TH AMENDMENT ACT, 1971), MANIPUR –

Article 371C deals with special provisions with relevancy Manipur that became a State in 1972. The President could offer for the constitution of a committee of elected members from the Hill areas within the Assembly, and entrust “special responsibility” to the Governor to confirm its correct functioning.

5. “ARTICLE 371D (32ND AMENDMENT ACT, 1973; SUBSTITUTED BY THE ANDHRA PRADESH REORGANISATION ACT, 2014), ANDHRA PRADESH AND TELANGANA” –

President should guarantee “equitable opportunities and facilities” in “public employment and education to folks from completely different areas of the state”. He could require the state regime to organize “any category or categories of posts into civil service of, or any class or classes of civil posts under, the State into different native cadres for different areas of the State”. He has similar powers for admissions in academic establishments.

6. ARTICLE 371E –

Allows for the establishment of a university in Andhra Pradesh by a law of Parliament. However, this is not a “special provision” within the sense of the others in this part.

7. “ARTICLE 371F (36TH AMENDMENT ACT, 1975), SIKKIM” –

It states that the Legislative Assembly shall include at least thirty members. So as to safeguard the rights and interests of the various sections of the population within the state of Sikkim, seats in the assembly are provided to folks of those different sections.[7]

8. “ARTICLE 371G (53RD AMENDMENT ACT, 1986), MIZORAM” –

The Legislative Assembly of the state of Mizoram should consist of not less than 40 members. Additionally, following a similar provision as Nagaland, an act of Parliament wouldn’t apply to Mizoram in matters about religious or social practices of Mizo, Mizo customary law and procedure, administration of civil or criminal justice involving decisions in line with Mizo customary law, possession and transfer of land and its resources.

9. “ARTICLE 371H (55TH AMENDMENT ACT, 1986), ARUNACHAL PRADESH” –

The Governor encompasses a special responsibility with respect to law and order, and “he shall, after consulting the Council of Ministers, exercise his individual judgment on the action to be taken”.

The Legislative Assembly of the state of Mizoram must include of not less than 30 members.

10. ARTICLE 371I –

It deals with Goa; however, it doesn’t include any provision which can be deemed ‘special’.

The Legislative Assembly of the state of Goa should include of not less than 30 members.

11. “ARTICLE 371J (98TH AMENDMENT ACT, 2012), KARNATAKA” –

Article 371J grants special standing to 6 backward districts of Hyderabad-Karnataka region.

The special provision requires that a separate development board be established for these regions similar to state of Maharashtra and Gujarat.

There shall be “equitable allocation of funds for developmental expenditure over the aforementioned region”, and “equitable opportunities and facilities” for citizens of these region in government jobs and education.

A proportion of seats in educational establishments and state government jobs within Hyderabad-Karnataka should be reserved for individuals from that region.

SIGNIFICANCE

All these provisions take into consideration the special circumstances of individual states, and lay down a large range of specific measures that are deemed important for these states.

In these range of Articles from 371 to 371J, Article 371I, that deals with Goa, stands out at the sense that it doesn’t consist of any provision that can be deemed “special”.

Article 371E, which deals with Andhra Pradesh and Telangana, too, isn’t that “special”.

INNER LINE PERMIT

Inner Line Permit (ILP) is an official travel document issued by the involved regime to permit inward travel of Indian people into a protected area for a limited period. It’s obligatory for Indian persons from outside these states to get a permit for entering into the protected state.

The document is an attempt by the regime to control movement to specific areas set close to the international border of India. Despite the actual fact that the ILP was originally created by the Brits[8] to safeguard their business interests, it continues to be employed in India, formally to safeguard indigenous communities’ cultures in North-Eastern India.

There are completely different types of ILP’s, one for tourists and others for those who wish to stay for long run periods, often for employment functions.

ILP’s valid for tourism functions are granted as a matter of routine

MIZORAM – Issued by the Government of Mizoram. It is needed for getting into Mizoram through any of the check gates across the inter-state borders. Typically, a “Temporary ILP” is issued to guests, that is valid for seven days and may be extended another fifteen days, with the chance of extending it to one month in exceptional conditions. However, with the support of a native resident or government department, a “Regular ILP” may be obtained, that is valid for six months and may be renewed twice for additional 6 months each. If arriving by air, an ILP can be obtained on arrival at Lengpui Airfield in Aizaw.

NAGALAND – Here ILP are issued by the Government of Nagaland.

MANIPUR – The bill to implement ILP within Manipur was introduced in 2018, by the Government of Manipur. The bill didn’t get passed since it couldn’t get the President’s nod. However, the inclusion of Manipur in Inner Line Permit is also announced on December 10, 2019 after anti CAA agitation[9] in North-Eastern India.

An ILP was also earlier required for certain areas of the Leh district in Ladakh. This condition was abolished by a circular issued by district magistrate that took effect from May1; 2014 though foreign nationals are needed to get Protected Area Permit for this part. However, the ILP was enforced again in Leh in 2017. There are progressed demands for the introduction of ILP in Assam, Meghalaya, and Andaman and Nicobar Islands to control entry of outsiders into the state.

ARUNACHAL PRADESH – here issued by the secretary (political) of Arunachal Pradesh. ILP is required for getting into Arunachal Pradesh through any of the check gates across the interstate border with Nagaland or Assam. An ILP for temporary tourists is valid for seven days and can be extended, whereas one for those taking employment within the state and their immediate members of the family is valid for a year. The Arunachal Pradesh government is going to implement a permit-on-arrival system.

INSURGENCIES IN NORTH-EAST

Tripura, Nagaland, Manipur, and Assam had been witnessing conflict since 1950-60 period, however since 1990, the intensity of conflicts began to decrease. Currently the sole state wherever large insurgency exist is Manipur. However, in this region many armed factions operate. Some fight for a separate state, others for regional autonomy whereas some extremist demand complete independence.

North-Eastern part of India is the region located within the most eastern part of India consist of the eight states of Manipur, Arunachal Pradesh, Assam, Meghalaya, Mizoram, Nagaland, Tripura and Sikkim.

North East is connected with Indian mainland by the 21 km. wide Siliguri Corridor, that is usually referred as the chicken neck, formed by the Radcliffe line[10]. The passageway is flanked by countries Nepal, Bhutan, and Bangladesh.

The North-eastern borders on four countries, namely, Bhutan and China on its North; Myanmar on its East; and Bangladesh on its South and West. It a region of 2.6 lakh sq. km. (7.6% of India’s land area) whereas its population is thirty-nine million plus (3.6% of India’s population). It has 475 ethnic social groups and 400 dialects or languages are spoken here.

REASONS FOR CONFLICT IN NORTH -EASTERN INDIA

North-Eastern India represents a state of stable lawlessness where the rule of law and different establishments of governance are subverted directly or through covert ways to fulfil personal or partisan ends of the extremists.

REGIONAL ISSUES

The inter-tribal conflicts, the unemployment and the inability to contend with non-tribal businesses, outlaw migration from close States and countries resulting in the competition of resources and land have led to various conflicts and demands of autonomy or secession.

NATIONAL ISSUES

            The broad racial variations between India and its North-Eastern area and the loose geographical connect the chicken neck Siliguri Corridor resulted into a feeling of alienation, a sense of ‘otherness’ which afterward gave rise to a political culture of violent separatism.

ETHNIC TENSIONS

            Northeast is home to over fifty ethnic rebel armies – a number of demanding complete independence from India, others fighting for ethnic identities associated with homelands and few running the rising as a business to garner easy money without any ideology or politics.

Extremist in their starting years voiced real grievances of the citizens such as “poor governance, alienation, lack of development and an apathetic attitude from the central government”. But with time and opportunist motives, these have taken forms of insurgencies across the whole area.

INSURGENT GROUPS IN NORTH EAST INDIA

MANIPUR – Peoples Liberation Army, PREPAK

ASSAM – ULFA, NDFB, KLNLF, UPDS

TRIPURA – National Liberation Front of Tripura, All Tripura Tiger Force

MEGHALAYA – ANVC, HNLC

NAGALAND – NSCN-IM, NSCN-K

BORDER PROBLEMS

The international borders in the North-Eastern part of India are extremely porous. Thus, cross border infiltration of militants, and smuggling of arms are unchecked within the area.

China has different claim for border in Arunachal Pradesh. On   the westernmost corner, Chinese claim line are 20 kms south and in the East most part of Arunachal Pradesh it is 30 km South.

International borders in the North East haven’t crystallized[11] into lines separating sovereign nations on the ground.

POLITICAL ISSUES

It’s necessary to know the culture and psyche of the citizens of North East while making alternative policies.

The perceived threat to the political identity of the Assamese citizens from the illegal migrants from Islamic Republic of Bangladesh[12] lies at the centre of the Assam problem. The native people of Assam sense that in near future the illegal migrants can become the bulk population and they will lose political power in the state.

The ceasefire agreements and peace negotiations have benefited in reducing the violence levels and given the civil societies of the region an area to speak.

One of the ways to restrict insurgency within the region is to delegate powers to the ethnic minorities through the Autonomous District Councils[13] in order they can foresee their own development work.

The implementation of 6^th Schedule in Assam has not benefited the social communities of the state. Following the 73rd and 74th amendments, the Central and state governments are providing immense amounts of monetary resources to the Panchayati Raj Institutions and municipalities. Since, the scheduled areas do not fall under the view of the PRI and municipalities, they do not receive any amount from these funds and as a result they lag behind.

RECENT DEVELOPMENT ABOUT NORTH EAST INDIA

INSURGENCY & CEASEFIRE

The core of insurgency that is popular support is drying up in the region. Insurgency is active solely in Manipur. There are around fifty insurgent groups there.

Ceasefire and Suspension of Operations with militants permit them to relishes in extortion and kidnapping, that facilitate them in maintaining their clout over the people of the area.

There exist deep ties between all the insurgent groups in the Northeast. The CPI Maoist is also in touch with the North east insurgents primarily to get weapons. Arms were sold by the United Liberation Force of Assam (ULFA)[14] to the CPI Maoist in Paschim Bengal.

The biggest challenge to the North East is extortion dispensed by numerous insurgent groups. Extortion has become organized activity in the region and is one of the key sources of funds for the militants of the area.

            The lifting of the AFSPA[15] from all parts of Meghalaya on 31st March 2018 is an illustration of the huge improving security condition in the region. In Arunachal Pradesh also, areas under AFSPA have been reduced from sixteen outpost areas bordering Assam to eight out posts, along Changlang and Longding and Tirap districts.

PEACE TALKS

Talks with the MNF[16] was the sole example of the fruitful or successful peace process that ended militancy in Mizoram in 1986 till Naga Accord.

Other peace accords such as the Shillong Accord in 1975 with the N.N.C. in Nagaland, the 1988 agreement with the Tripura National Volunteers in Tripura and The Bodoland Autonomous Council agreement of 1993 with the Bodo militants[17] in Assam are also in effect, however with limited success.

Union government has in progress ceasefire agreements with six militant groups with different actors like NSCN (IM), UPDS, Achik National Volunteer Council etc.

NAGA PEACE ACCORD

“The 3 August peace deal between National Socialist Council of Nagalim (Isak-Muivah) and Government of India could be a harbinger of peace in the strife-torn North-East. The agreement was signed between Thuingaleng Muivah, the present General Secretary of NSCN (IM) and the Prime Minister Narendra Modi. The ‘framework agreement’ is a progressive step in the right direction which will initiate dialogue within the broad four walls of the Indian Constitution.”

The above deal comes within the background of deadly attack in Manipur, that claimed lives of eighteen army men. The attack is assumed to have been carried out by the National Socialist Council of Nagaland’s SS Khaplang-led faction (NSCN-K), operational from bases across the border in Myanmar. Government acted fleetly by launching a military operation across the Indo-Myanmar border to punish the terrorists which forced NSCN [18]faction of the Indian side to come on the table.

The Peace deal goes well with the internal security dimension of the North-East India given its geo-political position as being bordered by four countries China, Myanmar, Bangladesh and Bhutan. North-East is connected with the Indian region through the 21 km wide Siliguri Corridor, usually known as the chicken neck. With the decrease in armed insurgency, development work is often carried with greater pace which will help in the integration of North-East with the Indian mainland. North-East encompasses tremendous economic potential which has remained unexplored till. It could emerge as the cradle of tourism and organic farming. With greater normalcy security forces concerned in internal security can be moved to border areas for its optimum use.

BROAD POINTS OF PEACE ACCORD

“The details of accord are not out but it is believed that the aspirations of Nagas will be addressed within the framework of Indian Constitution.

• Cultural integration of Nagas living in states aside from Nagaland will be expedited through special measures.
• It would also provide for the monetary and administrative autonomy of the Naga-dominated areas in different states.
• Government is willing to contemplate delegation of more powers to Nagaland legislature under article 371 A that is already effective”

NAGA INSURGENT DEMAND OVER THE YEARS

The Naga movement has been declarative of a distinct ethnic identity and demanding an independent homeland or country.

The NSCN was shaped within the aftermath of the Shillong Accord of 1975, signed between the government of India and the Naga National Council. The NSCN had started life demanding the creation of “Greater Nagaland” or “Nagalim”. This would be a sovereign Naga territory, wedged between India and Myanmar. It might include the Naga-dominated areas of Manipur, Assam and Arunachal Pradesh, and parts of Myanmar.

The NSCN-IM, which had given up its original demand of sovereignty a few years past, has been asking for integration of Naga inhabited areas in Assam, Manipur and Arunachal Pradesh.

PAST ACCORDS

“In North-Eastern India many insurgent groups are active for many years and have been demanding independent and autonomous states based on ethnicity. In past also many peace accords have been signed however they’d not translated into the desired result thanks to rigid postures of the most parties.

• In 1964, a Nagaland Peace Mission was formed which signed a ceasefire with A.Z. Phizo, solely to last till 1968.
• In 1975, the Shillong Accord[19] was signed in that the Naga National Council agreed to give up arms and accept the Indian Constitution.

Muivah and Swu, who were then NNC members, revolted on the Naga sovereignty demand and went on to create the National Socialist Council of Nagaland in 1980 with S. S. Khaplang. In 1988, the NSCN split due to leadership differences, into the NSCN (IM) and the NSCN (K).

The NSCN (I-M) have signed a ceasefire agreement with the government till April 27, 2016”.

NAGA PEACE ACCORD EFFECT ON NORTH-EAST INSURGENCY

The latest agreement has been signed with NSCN (IM) solely and its different faction is not on board like the NSCN (Khaplang), the NSCN (Konyak-Kitovi). The Naga Hoho (tribal council), Naga National Council (NNC), Naga student Federation (NSF) and Naga Mother Association are other different prominent players that acts independent of the NSCN (I-M) has not supported the latter’s leadership of the Naga cause yet.

There are various stakeholders in the Naga peace process and any talk to be successful must accommodate the interests of all these parties. Government through proper consultation should attempt to bring them on board. Before arriving at any solution Indian govt. has to take different North-East states into confidence.

The above peace accord if fructified will inspire different insurgents’ groups to come on the table and to have a talk for real grievances like the ULFA and Democratic Front of Bodoland, etc.

POLITICS BEHIND ABROGATION OF ARTICLE 370 AND FOR PROTECTING SIMILAR ARTICLE 371

“Even after repealing article 370 provisions which gave special rights to Jammu and Kashmir; Government of India at the same time swearing by the same Constitution, guaranteeing the people of Nagaland, seeking an independent and sovereign Nagaland, that Article 371A similar to Article 370, which guarantees similar special status to the people of Nagaland, will not be scrapped in the same manner as 370”.

“Naga Hoho the highest tribal body of Nagas in Nagaland had expressed concern over government’s move to scrap Article 370. Naga Hoho president Chuba Ozukum had said, “We have apprehension that if the Government of India can scrap 370 in Jammu and Kashmir, it can remove 371(A) in Nagaland.” There were similar protests and apprehensions expressed by the leaders of North East hilly states like Manipur and Tripura but of that later.”

However, Governor Ravi[20] went public giving assurances, swearing by the Constitution. He said, “Dear brothers, sisters and children of Nagaland. Some people have expressed apprehensions over the implications of development in Jammu & Kashmir on Nagaland. I would like to categorically assure you all that you don’t have to worry at all. Art 371A is a solemn commitment to the People of Nagaland. It is a sacred commitment. We are trying hard to conclude the on-going political process at a very advanced stage”

CONCLUSION

As evident from the research work, we can conclude that Article 371 is more or less similar to article 370. “As a part of Chapter XXI of the Constitution of India, Article 371 grants temporary, transition and special provisions to eleven States – Karnataka, Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, and Goa. The concept was to fulfil the distinctive desires of these States or regions of these States, shield the economic and cultural interests of these regions, combat the local challenges and protect the customary laws in this region”

The intention behind the provisions of Article 371 is to safeguard the interest and aspirations of certain backward regions or to protect cultural and economic interests of the tribal people or to deal with the disturbed law and order in some areas. This article provides special powers to the Governors of Gujarat and Maharashtra to form independent development boards for Vidarbha, Marathwada, Saurashtra, Kutch and for the rest of Gujarat and Maharashtra.

But, “we can also see that it incited or inspired the secessionist forces of these States who were granted the special provisions. As evident from Insurgency in North East India Nagaland, Manipur, Assam and Tripura had been witnessing conflict since 1950-60 period, but since 1990, the intensity of conflicts started to decrease. Now the only state where prominent insurgency exist is Manipur.”

Moreover, under Article 371 non-residents are still not allowed to buy agriculture land in Himachal Pradesh.

Both Article 371A and Article 371G limit the Parliament’s authority to enact any law that interferes with tribal religious laws, customs, including their justice system which in a way is challenge to Sovereignty of country.

Despite the fact the article 371 A and 371G is very similar to article 370 still one is abrogated and other is protected has deep political roots in it which is quite evident from Naga Accord. In which there are speculations the Centre will create two autonomous councils, one each in Arunachal Pradesh and Manipur, as a part of the final Naga accord.

REFERENCES

1. “Pandey J.N, Constitutional Law of India ;2019, Fifty sixth edition; Central Law Agency, Allahabad”.
2. “https://indiankanoon.org/doc/89891/”.
3. “https://www.theweek.in/news/india/2019/08/05/states-that-have-special-provisions-under-article-371-a-j.html”.
4. “https://www.indiatoday.in/india/story/centre-article-371-illegal-immigrant-allowed-amit-shah-assam-1596934-2019-09-08”.
5. “https://www.moneycontrol.com/news/india/explained-states-that-enjoy-special-provisions-similar-to-article-370-in-jk-4318651.html”.
6. “https://indianexpress.com/article/explained/what-is-inner-line-permit-and-will-it-address-north-east-states-concerns-over-cab-6145508/”.
7. “https://indiankanoon.org/doc/666119/”.
8. “https://economictimes.indiatimes.com/news/politics-and-nation/peace-accord-faces-hurdle-over-separate-naga-identity/articleshow/74467917.cms?from=mdr”.
9. “https://thegeopolitics.com/the-origins-and-causes-of-insurgency-in-northeast-india/”.
10. “https://www.insightsonindia.com/2019/09/12/6th-schedule-of-the-constitution/”.
11. “https://www.thesikkimchronicle.com/sikkims-article-371-f-delivering-a-special-constitution-within-the-indian-constitution/”.
12. “https://www.easternmirrornagaland.com/was-the-creation-of-the-state-of-nagaland-a-mistake/”.
13. “https://timesofindia.indiatimes.com/india/Two-crore-Bangladeshi-immigrants-illegally-staying-in-India-Centre-informs-Rajya-Sabha/articleshow/55457903.cms”.
14. “https://www.telegraphindia.com/states/north-east/porous-border-fuels-cattle-smuggling/cid/1413549”.
15. “https://www.krctimes.com/news/r-n-ravi-is-the-new-nagaland-governor/”.
16. “https://www.newindianexpress.com/nation/2020/jan/24/naga-accord-nscn-im-seeks-to-buy-peace-with-manipur-organisations-2094029.html”.
17. “http://www.youtube.com/watch?v=0jq0wuRC85A#action=share”.
18. “https://www.youtube.com/watch?v=rfHHXG3c3WQ”.
19. “https://www.youtube.com/watch?v=e1_aeIOwx8g”.

[1] “Permanent resident is a person who can live indefinitely in a state but don’t have full citizen rights”.

[2] “Initially, Sikkim remained an independent country, until it merged with India in 1975 after a decisive referendum.”

[3] “President can exercise his power to extend any enactment in Sikkim, which is in force in any other state of India”.

[4] “It is a political slogan given by Dr. Syama Prasad Mukherjee founder of Bhartiya Jana Sangh, the predecessor to the Bhartiya Janata Party.

[5] “On 7th August 2019, President Ram Nath Kovind declared abrogation of Article 370 of the Indian constitution after the resolution to revoke the article was passed by both the houses of the parliament (Rajya Sabha & Lok Sabha)”.

[6] “Earlier Naga Hills Tuensang Area (NHTA) created in 1957 was converted into the State of Nagaland in 1962 as the 16 State of the India Union. The territorial jurisdiction of the state comprised of a part of the erstwhile Naga Hills district of Assam and the then Naga tribal area of Tuensang Div of (NEFA).”

[7] “Sikkim has 12 seats for the Bhutia-Lepcha (BL), 1 seat for the Sangha and two seats reserved for the Scheduled Castes (SC) in the 32- member assembly”.

[8] “The Inner Line Permit concept comes from the colonial area. Under the Bengal Eastern Frontier Regulation Act, 1873, the British framed regulations restricting the entry and regulating the stay of outsiders in designated areas”.

[9] “The Act seeks to amend the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, who have lived in India without documentation. They will be granted fast track Indian citizenship in six years. So far 12 years of residence has been the standard eligibility requirement for naturalization”.

[10] “The Radcliffe Line was the boundary demarcation line between the Indian and Pakistani portions of the Punjab and Bengal provinces (now Bangladesh) of British India. It was named after its architect, Sir Cyril Radcliffe.”

[11] “No markings along the 58km Indo-Bangladesh riverine international border in Dhubri district is creating hurdles in tackling the illegal immigration.”

[12] “Illegal immigration from Bangladesh to India, which includes both refugees and economic migrants, continues unabated. An analysis of population growth and demographic statistics for Bangladesh and India in the last four censuses of 2011, 2001, 1991, and 1981, however, suggests with reasonable certainty that their number exceeds 20 million.”

[13] “Under the provisions of the Sixth Schedule of the Constitution of India, autonomous district councils can make laws, rules and regulations”.

[14] “The United Liberation Front of Assam (ULFA) is a designated revolutionary rebel organization operating in the Indian state of Assam. It seeks to establish an independent state of Assam with armed struggle in the Assam conflict. The Government of India banned the organization in 1990 citing it as a terrorist organization, while the United States Department of State lists it under “other groups of concern.”

[15] “Armed Forces Special Powers Act (AFSPA), 1958 is an act of the Parliament of India that grant special powers to the Indian Armed Forces” the power to maintain public order in “disturbed areas”.

[16] “Mizo National Front uprising was a revolt against the Government of India, aimed at establishing a sovereign state for the Mezzos. On 1 March 1966, the Mizo National Front (MNF) made a declaration of independence, after launching coordinated attacks on the Government offices and security forces post in different parts of the Mizo district in Assam.”

[17] “The National Democratic Front of Bodoland (NDFB) was an armed separatist outfit which seeks to obtain a sovereign Bodoland for the Bodo people It is designated as a terrorist organization by the Government of India”.

[18] “The National Socialist Council of Nagaland (abbreviated NSCN) is a Naga nationalist separatist group operating mainly in Northeast India, with minor activities in northwest Myanmar (Burma). The main goal of the organization is to establish a sovereign Naga state”.

[19] “The Shillong Accord of 1975 was an agreement signed between the Government of India, and Nagaland’s underground government, or Naga guerrillas, to accept the supremacy of Constitution of India without condition, surrender their arms and renounce their demand for the secession of Nagaland from India.”

[20] “R.N Ravi has retired as a special director of the Intelligence Bureau in 2012. He was appointed as a chairperson of the Joint Intelligence Committee in 2014 for three years. He was the Centre’s interlocutor in 2015 when the government signed a framework agreement for a settlement of the Naga question with the National Socialist Council of Nagaland (Isaac-Muivah), the largest of the Naga armed groups. His appointment as Governor of Nagaland has special purpose of speeding up implementation of Naga Peace Accord.”

Authored By: NRIPENDRA PANDEY

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post ARTICLE 371 OF INDIAN CONSTITUTION AND ITS IMPACT ON NORTH-EASTERN PART OF INDIA WITH SPECIAL REFERENCE TO INSURGENCIES AND NAGA ACCORD appeared first on Legal Desire Media and Insights.

The current research paper plans to comprehend the dark year or the time of 1990 of India in which the “EXODUS OF KASHMIRI HINDUS” occurred. The Hindus of Kashmir valley (hereinafter called the Valley) had to leave the Valley because of being focused by the JKLF (JAMMU AND KASHMIR LIBRATION FRONT) and the Insurgents. The Kashmiri Hindus structure a vital also, most established piece of the valley, consequently, when in 1990 they were startlingly and abruptly drove away from their genealogical homes and properties it was a profound established stun for the whole country. Numerous negotiators brought up issues over the explanations behind the persuasive and terrible departure of the Hindu people group from the Valley, however a certain something was evident that this mass migration was not a simple collective uproar among Hindus and Muslims as had occurred in different pieces of India a few times. The mass migration of Hindus from the Valley had a political foundation and a plan to spread fear mongering and to make a situation that underpins the Pakistani based motivation in the valley, the results of which were endured by the minority network in the Valley.

Keywords: Kashmir, Exodus, Kashmiri Hindus, Militants, JKLF, Riots

INTRODUCTION

Verifiably, Kashmir alluded to the Kashmir valley,^[1] anyway at present time it frames a bigger region that incorporates the Indian regulated Union Territories of Jammu and Kashmir (which incorporates Jammu and the Kashmir Valley) and Ladakh, the Pakistan directed locales of Aksai Chin and Trans-Karakoram Tract. In the principal half of the main thousand years the Kashmir area turned into a significant focal point of Hinduism and later Buddhism; further in the nineteenth century Shaivism emerged. Islamization showed up in Kashmir in the thirteenth to fifteenth century and prompted the inevitable eradicating of Kashmir Shaivism in the Valley.

Anyway, the foundations of the past network were not lost.

            In 1339, Shah Mir turned into the absolute first Muslim leader of the Valley and built up the principal Shah Mir Dynasty. The Kashmir valley was affected by the Muslim rulers for the following five centuries. This incorporated the Mughal Empire, whose rule was from 1586 until 1751 and the Afghan Durrani Empire which had its capacity on Kashmir from 1747 until 1819. That year, Sikhs under the authority of Ranjit Singh caught Kashmir. After the destruction of Sikhs in 1846 in the first Anglo – Sikh war, the bargain of Lahore was marked and the Valley was purchased from the British guideline under the settlement of Amritsar. The standard of Kashmir was given over to Raja Gulab Singh. The standard of his devotees endured up to 1947 when the previous royal state turned into the region that is currently controlled by three nations: India, Pakistan, and the People’s Republic of China.

OBJECTIVES

• To comprehend the historical backdrop of Kashmir;
• To comprehend the historical backdrop of Kashmiri Hindus;
• To find out about the historical backdrop of the start of Muslim standard and impact in the Valley;
• To find out about the mass migration of Kashmiri Hindus from the Valley and the political plan behind it;
• To find out about the outcome of the mass migration of Kashmiri Hindus from the Valley;
• To infer an end out of this entire research about the mass migration of Kashmiri

HISTORY OF KASHMIRI HINDUS

            The Kashmiri Pandits or the Kashmiri Bhramins are an area of Kashmiri Hindus and an armore extensive Saraswit Brahmin people group. They are individuals from the Pancha (five) gauda brahmin bunch in the Kashmir Valley.^[2] Kashmiri Pandits were occupants of the valley path before the Muslim wave entered the valley and a significant number of them had to change over into Islam by the Islamic Intruders every once in a while. They are the main tribal network of Kashmiri Hindus who had been left in the valley. The Hindu position framework in the valley had aroused from the idea of Buddhism from the course of events of Asoka. Another eminent component of this network was the high respect that they had for the ladies of their locale when contrasted with the other networks or social orders. It was not until the fourteenth century that the Muslim impact was at last settled in the Valley.

            In the time of 1320, Zulju, who was a Mongol from Turkistan, caused annihilation at the point when he drove a power that caught numerous segments of the Kashmir valley. From 1389 to 1413 another Intruder to be specific Sikandar Butshikan (1389-1413) was increasingly boorish and his activities were progressively terrible as he constrained numerous Kashmiri Hindus to either change over to Islam or to escape from the valley. He was likewise responsible for the destruction of numerous non-Muslim strict locales in the Valley. He had been named as a nonconformist in the History for a similar explanation.

            After the rule of Sikandar Butshikan the Kashmir was controlled by Zain-Ul-Abidin who was a devout Muslim ruler and who needed that all the networks in the Valley remain together. During the rule of Zain-Ul-Abidin the Buddhists and Brahmins shaped piece of his nearby associate.

            In the fourteenth century Islam turned into the ordering religion in the Valley. By the mid sixteenth century the job of Hindu clerics had diminished as Muslim evangelist moved into Kashmir from Central Persia, and Asia and Persian Supplanted Sanskrit as the official language.³Kashmir saw the Mughal rule under the rule of the Mughal Badshah, Akbar, who happened upon the valley himself and vanquished it by double dealing.

            Strict dogmatism and prejudice tax collection showed up when Mughal ruler Aurangzeb climbed the seat after Akbar. After the demise of Aurangzeb, the impact of the Mughal Empire decreased in the valley.

            Kashmir was governed by Muslims for around four centuries before it was gotten by the triumphant multitudes of the Sikhs under Ranjit Singh of Punjab.^[3] After the passing of Ranjit Deo, the lord of Jammu , in 1780 , Jammu was likewise caught by the Sikhs. Ranjit Doe’s grandson Gulab Singh turned into the ruler of Jammu and Kashmir after the settlement of Amritsar was written and he was liberated from the dedication towards the Sikhs. After the death of Gulab Singh, his child, Ranbir Singh assumed control over the seat.

            Regardless of framing a significant piece of the Valley, the Muslims were struggled under the Hindu standard through raising duties, unpaid constrained work, and extremism laws. The Muslims didn’t have legitimate cognizance about the adjustments in the standards and were ceaselessly in arrear to landowners and moneylenders. The up and coming year of the 1930s saw Muslims gathering themselves strategically.

            Ranbir Singh’s grandson, Hari Singh, who was the ruler in the year 1947, saw the division of the Indian domain into the recently autonomous Dominion of India and Dominion of Pakistan. Leaders of Princely states were spurred to join their states to either Dominion India or Dominion Pakistan.

            To avoid any arbitrary end, the Maharaja of Kashmir, Hari Singh, wrote a Standstill Agreement with Pakistan anyway no such accord was written with India. Following tremendous commotion in Jammu, in October 1947, Pashtuns from Pakistan’s northwest area interfered Kashmir. The outward point of the guerilla battle was to frighten the King into yielding; be that as it may, the Maharaja genuinely approached the Indian government for help.

            The guide was given to the Maharaja relying on the prerequisite that he shapes a piece of India. Maharaja Hari Singh consented to the condition and The Instrument of Accession was marked by him.^[4] The Indian warriors entered Kashmir and drove the Pakistani-supported paramilitary out from the Valley.

            Kashmir pioneer Sheik Abdullah approved the promotion as specially appointed which would be at last finished up by the individuals of the state. He was designated as the pioneer of the crisis the board by the Maharaja.^[5]

            In 1947 Kashmiri Pandits framed about 6% of the populace however in 1950 it decreased to 5% the same number of them moved to different pieces of India. In 1989, a large portion of Kashmiri Pandits that were living in the Valley had to leave the valley because of the activist revolt.

            Kashmir has likewise been known as the place where there is Sun Worship with different sanctuaries been made by the enthusiasts. One such sanctuary is the sanctuary of Martand Sun. Wanvun singing structures an important some portion of Kashmiri Pundit’s strict capacities.

            The Kashmiri Pandits celebrations incorporate Shivratri and the Navrah or the Kashmiri Lunar New Year. Henzae is an antiquated type of singing practiced by Kashmiri Pandits during the event of their celebrations.

POLITICAL UPTURNINGS IN THE VALLEY

            According to the 1975 accord, Sheik Abdullah agreed to acknowledge the guidelines as given in the understanding.^[6] Be that as it may, this prompted extraordinary inadequacy among the individuals of the Kashmir and drove the base work for the future rebellion.^[7] The individuals who were against to it included Jammat-e-Islami Kashmir, People’s alliance in Indian Jammu and Kashmir and the JKLF in the Azaad Kashmir.^[8] Pakistan’s Inter-Services Intelligences attempted to run a flood of Wuhabism instead of Sufism to bind together the two countries dependent on religion. This was only the beginning of the 1990s, during the mid-90s genuine Islamisation started when the Abdullah government took a choice to change the names of around 2500 towns from their antiquated names to new Islamic names. Furthermore, Sheik additionally began giving strict talks instead of love and begun marking Kashmiri Pandits as “mukhbir” or witnesses of the Indian government.^[9]

            The ISI’s initial step to make unsettling influence in the Valley against the Indian government begun developing in the late 1980s. The Afghan Jihaad in against the soviet, the Islamic unrest in Iran, and the outfitted battle of the Sikhs in Punjab against the Indian government turned into a wellspring of motivation for the youthful Muslims in the Valley to go against the Indian government.

            The year 1984 saw a colossal development in the non-military personnel exercises in the valley, when the professional – JKLF aggressor Maqbool Bhat was executed in February 1984, the valley experienced tremendous mayhem by the Kashmiri patriot adolescents, who went in streets to show their enemy of Indian exhibit., which confronted extreme reprisal by the Indian government.

            The then Chief Minister Farooq Abdullah has been upbraided in light of the fact that he made a visit to the Pakistan Administered Kashmir which was a colossal humiliation for the country, anyway he had protected himself on the words that he had made the visit in the interest of Ms. Indira Gandhi and her father with the goal that the assessments there could be known “direct’’, however not many individuals trusted him. He had additionally been considered responsible for the remittance of Khalistan psychological oppressor gathering to prepare in the Jammu region yet this couldn’t be upheld up by the sources. After his brother by marriage was an excused in what was named as ‘political upset’, G.M Shah had his spot. G. M Shah’s administration didn’t have individuals’ endorsement so they went to individuals who adversaries of India, especially, the Molvi Iftikhar Hussain Ansari, Mohammad Shafi Qureshi and Mohinuddin Salati, to increase some authenticity through strict convictions.

            In 1986, Shah chose to fabricate a mosque on the grounds of an old Hindu sanctuary for the individuals to do ‘namaz’. This was met with incredible antagonistic vibe among the individuals of Jammu as they took to lanes to show their threatening vibe. Numerous occasions were detailed in different parts where the Kashmiri Hindus were murdered and their properties what’s more, sanctuaries annihilated. Shah’s legislature was excused on twelfth March 1996 by the then senator Jagmohan following collective commotion in south Kashmir.

            The Islamists had composed themselves under a feature named MUSLIM UNTIED FRONT and challenged the 1987 races where they lost once more. Be that as it may, the 1987 races were accepted to be fixed in order to unite common gatherings in the front line in Kashmir and this caused the insurrection in Kashmir.

INSURGENCY ACTIVITIES IN THE VALLEY

            In July 1988, the Jammu and Kashmir Liberation Front (JKLF) started a nonconformist revolt for Independence of Kashmir from India. They initially had targeted on a Kashmiri Hindu, Tika Lal Taploo, a Bhartiya Janata Party laborer, before a few people in the Valley. This imparted dread in the individuals since the enemies of Taploo were never caught.^[10]

            After Taploo’s demise, an appointed authority of Srinagar High Court, Nilkanth Ganjoo was shot to death. In December 1989, individuals from JKLF kidnapped Dr. Rubaiya Sayeed, little girl of the then Union Minister Mufti Mohammad Sayeed requesting the release of five aggressors, which was along these lines fulfilled.^[11]

            Workplaces structures, shops, production lines and foundations were hued green as a sign of Islamist rule. The dividers were secured with banners that contained undermining messages from the aggressors. Different properties of Kashmiri Hindus were decimated by the aggressors. The places of Kashmiri Hindus were secured with compromising banners to leave the valley right away. A power outage occurred the evening of nineteenth and eighteenth January in the Valley. The power was removed aside from in the mosques which communicated a provocative message to the Kashmiri Hindus.^[12]

            On 2 February, 1990, Satish Tikoo, a social laborer was murdered. Lassa Kaul, station executive of Srinagar Doordarshan was shot dead on thirteenth February 1990. Numerous Kashmiri ladies were grabbed and killed.

AFTERMATH

            After departure the militancy expanded in Kashmir. The properties of Kashmiri Hindus were focused after their departure. The day of fourteenth September 2007, was set apart as the Martyrs day by the Oregon Legislative Assembly to perceive the crusades of dread dispensed on the non-Muslim minorities of Jammu and Kashmir by activists. Kashmiri Hindus proceed with their battle to return to their home, a large portion of them lost their properties after their mass migration and many can’t return and sell those. Their status has changed to uprooted individuals and this has influenced them in the field of training. They can’t send their youngsters to reputed schools.

            Anyway, later the Indian government took the matter of training in their grasp and helped them to look for instruction by getting them selected Kendriya Vidyalayas and major instructive establishments and colleges the nation over. An overview was done by the Kashmir Pandit Sangharsh Samiti (KPSS) in 2008 and 2009, a neighborhood association of Hindus in the valley, which expressed that around 399 Kashmiri Hindus were murdered by radicals in the Valley. A political gathering to be specific Panun Kashmir, speaking to the Hindus who fled the Valley expresses a rundown of around 1,341 Hindus murdered since 1990.

CONCLUSION AND SUGGESTION

            After all this while the Kashmiri Hindus are still interspersed in their own country like immigrants. Many of them are still not able to overcome the grief of losing their ancestral home and properties of their lifelong hard-work. Their lives had turned catastrophic after the exodus. They still have hopes of returning to their home, to their land, and living their life like once they lived. The communal exodus that took place had a political agenda behind it which turned the innocent lives of Kashmiri Hindus upside down. Even though the government has made efforts of sending the Kashmiri Hindus back to their homeland and have also provided monetary and educational help to them, they still feel threatened and vulnerable. The Kashmiri Hindus are living like a displaced community in different parts of their own country with the hope to see their homeland once more. Their condition is irrevocable, but with support from the government, their dream of going back to the Valley one more time can be achieved. With this thought in their hearts, the Kashmiri Hindus still wait for the light at the end of this dark tunnel that they have been thrown into.

REFERENCES

1. Waldman, Amy (25 March 2003). “Kashmir Massacre May Signal the Coming of Widespread Violence”. The New York Times.
2. Warikoo, K., ed. (2010). Religion and Security in South and Central Asia.
3. p. 78.
4. “The Exodus of Kashmiri Pandits”. European Foundation for South Asian
5. Praveen Swami; India, Pakistan and the Secret Jihad: ”The Covert War in Kashmir” , 1947–2004 2007 , p.157.
6. Kaw, M. K. (2001). “Kashmiri Pandits: Looking to the Future.” APH Publishing.,
7. Tikoo, Colonel Tej K. Kashmir: Its Aborigines and Their Exodus. Lancer Publishers LLC.
8. Jagmohan (2006). My FrozenTturbulence in Kashmir (7th Ed.). Allied Publishers. p. 363.

[1] Christopher Snedden (15 September 2015) Understanding Kashmir and Kashmiris.

[2] Kashmir and its people: Studies in the evolution of Kashmiri society.

[3] Hasan, Mohibbul (2005). Kashmir under the sultans.

[4] Govt. Of India, White Paper On Jammu and Kashmir, Delhi, 1948, p.77.

[5] Sheikh Abdullah, Flames of the Chinar, New Delhi 1993, p.97.

[6] Hussain, Kashmiri Visions of Freedom 2015, pp.102, 103.

[7] Faheem, Interrogating the ordinary 2018, pp 233, 234.

[8] Chowdhury, Rekha (2015). Jammu and Kashmir: Politics of identity and separatism.

[9] “Kashmir violence-possible solution’ The Shillong Times.

[10] Warikoo, K, ed. (2010). Religion and security in south and central Asia.

[11] Praveen Swami; India, Pakistan and the secret Jihad: The Covert War in Kashmir, 1947 – 2004, 2007.

[12] Schofield, Victoria (2000). Kashmir in conflict: India, Pakistan and the unending war.

Authored By: APOORVA CHAUDHARY

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post EXODUS OF KASHMIRI HINDUS appeared first on Legal Desire Media and Insights.

            Torts law, which has been gradually established since Norman times, is part of the English common law. Academic scholars do not settle on whether or not a tort law is in existence. A tort law involves some common general rules that are relevant to all parts of the law. A tort law recognizes that there are various separate and distinct elements but also that there is something in common between the individual parts. It is a good topic for discussion but not very realistic. Although some contemporary miscarriages were developed by legislation, the rule is still usually found in the rules of common law. The source of harms can be tracked back to the 14th century, where the term ‘infraction’ had a far narrower legal sense than today.

            Initially, this applied to the word ‘injuries of the individual, land or properties (chattels) that are serious and forcible. Infringements is one of two medieval forms of acts, the other being ‘infractions’ or merely ‘events.’ The difference is also apparent today in the law of torts, which is operable per se, i.e. without evidence of injury, including violation of the land and the violation of the individual, usually emerges from the old form of the infringement, whereas the torts, which need evidence, e.g. n, are typically obtained from harm, which can be proved to be incurred in the event of injury.

            Today, although there may be cost penalties, the Rules of Court allow for the amendment of pleadings. The legal historian may find remnants of the old laws in the new statute, but the difference is of little significance for practical purposes.

INTRODUCTION

            Torts law, which has been gradually established since Norman times, is part of the English common law. Academic scholars do not settle about whether or not a tort statute remains in existence. A tort law requires certain specific general principles that are applicable to certain areas of the law. A tort law recognizes that there are various independent and distinct elements but still that there is much in common between the particular sections. This is a good matter for conversation but not really realistic.

            While certain contemporary miscarriages were developed by legislation, the rule is mostly contained in the rules of common law. The origins of the wrongs date back to the 14th century, when the term ‘transgression’ was granted a much wider legal definition. It was originally defined as “all immediate and enforceable injury to the individual, land or properties (chattels), and violation was one of two medieval modes of punishment. Case covered ‘incidents that were induced by a false but were neither forcible nor causal.’ The distinctions can also be found in the law of harm, harms that are per se operable, i.e. without proof of injury, such as offending against the land and infringing of the individual, usually derive from an ancient type of infringing, while the harms provided by lawsuits, such as abuse, for example

            In the past, it was of vital significance to discern between the misguided course of practice and the applicant being left without redress. The Laws of the Court provide for changes to pleadings today, but there could be expense penalties.

            The legal historian may find remnants of the ancient rules in contemporary law, but the gap is minimal for practical purposes relevance.

WHAT IS TORT

            The Latin expression ‘tortum’ is the word trap, meaning ‘to curl.’ The action does not be clear or legitimate, but is warped, abused, or criminal on the other side. It refers to the English word ‘fake.’ This field of law is composed of many “complaints” or misdeeds under which the wrongdoer breaches any certain person’s civil rights. The statute provides a requirement to protect the civil rights of the citizens of community and is presumed to have done the unfair thing to the individual who breaches the requirement. Given that “crime” is an illegal act, resulting from a violation of a penal law duty, “crime” is the infringement of the contract duty undertaken by a contracting party, “criminality” is also a breach of duty recognized in the law of the wrong. For e.g., a violation of a duty to injure someone else’s integrity leads to a tort of defamation, a violation of a duty not to intervene with the ownership of another person’s property, and a violation of a duty not of defamation, leads to torture of property deceit.

Some of the important definitions, which indicate the nature of this branch of law, are as under:

1. “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust;
2. The right to the rights of unliquidated losses is a legal error and does not specifically entail violation of the contract or violation of confidence or any truly equal ;
3. “Tortuous responsibility derives primarily from a neglect of a duty set down by the constitution, which is common in respect to individuals and which is rectified in the case of an infringement of that contract;
4. It is a breach of the freedom of a private citizen to sue against an injured party.

            The basic idea which is indicated by these definitions is – Firstly, tort is a civil wrong, and secondly, every civil wrong is not a tort. There are other civil wrongs also, the important of which are a breach of contract and breach of trust.

            Purpose, neglect, and strict liability violations may be defined as losses. They may also be categorized as harms to the human person (e.g. violation, negligence), the families (evil relatives’ deaths), properties (e.g., invasion of land or resources, diversion, conversion), economic rights (deception, contravention of contracts and injustices), and many other wrongs such as privacy infringements, which are yet to take the shape of miscarriage although not restricted to.

            In situations of serious injuries and death, the determination of claims includes several complex things, and a common solution for negligence is the payment of actual liability and reimbursement for the harm caused. An order, for example, is qualified under certain situations remedy.

            So we may define tort as a civil wrong which is repressible by an action for un liquidated damages and which is other than a mere breach of contract or breach of trust.

Thus, it may be observed that:

1. Tort is a civil wrong;
2. This civil wrong is other than a mere breach of contract or breach of trust;
3. This wrong is repressible by an action for unliquidated

ESSENTIALS OF TORTS

To constitute a tort, it is essential that the following two conditions are satisfied –

1. There must be some act or omission on the part of the defendant, and
2. The act or omission should result in legal damage (injuria), i.e., violation of a legal right vested in the

TORTUOUS LIABITLITY

            “Tortuous liability” arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for unliquidated damages.

The description is helpful as it indicates that three components exist: 1. A civil obligation – it is not automatically and usually, as we can see, it is a contractual responsibility, but instead an obligation acknowledged by Courts 2. The obligation has to be owed collectively, because there have been other misdeeds so that any person in a position to bring suit on the grounds of that misdeed 3 is owed a general burden. The complainant must be entitled to general liability for the breach of duty.

            The duty’s essence differs both accurate and incorrect. If neglect is suspected, the duty is to be fairly careful; if an individual is infringed, the responsibility is to refrain from infringing on the body’s dignity.

            There may be small class of persons on whom an obligation is owed. In negligence, for example, a liability is extended generally to those that would fairly have been expected to be liable to have a mistake; even those who are actually impacted by the statute have the right to infringe on the individual involved.

            The injuries caused must be of the sort that the statute acknowledges. Failure to understand, for example, that psychological damage was as much pain as physical harm requires several years. In the event of violation of the individual and certain actions which may be performed, it is improper to show injury enough.

THE INTERESTS PROTECTED BY THE LAW OF TORTS

            Common law is slowly being established in lieu of the preceding theory however, in general terms, one can define the general nature of the interests which torts law protects.

            Personal safety is most obviously safeguarded by infringement and infringement of the person and land. When negligence is observed, it is evident that this misdeed often plays a role in ensuring that the unfair actions and omissions of others do not affect a person. Nuisance helps protect a land occupier from actions that damage health or comfort on adjacent lands.

            Property shall be protected by torts of land infringement and goods intrusion. Nuisance and Ryland’s v Fletcher both help in remedying unlawful intervention with land use or damage caused by certain action or negligence in the nation of the wrongdoers in both instances. Negligence must also play a role in the absence of due attention where property is impaired.

            The integrity of an individual is damaged by misuse. In this sense, it is not possible to ignore the equal remedies available for violations of secrecy, but not solely in tort law and the expanding effect of the European Convention on Human Rights. This can help protect privacy by stopping actual, dangerous knowledge from publishing.

            Company failure is a strange phenomenon. Damages are assessed for the financial injury of the victim, although with what is defined as ‘pure financial loss’ there are restrictions on the scope of the compensation for negligence. ‘Economic’ mistakes, misleading falsehood, dismissal and trade interference may ensure a company is protected from unfair competition. Economic loss will also be paid where contract law is valid can be used.

SCOPE

            The law of tort has developed and expanded with the development of societies. The most primitive tort was the tort of trespass which provided remedies, when there was a direct interference in the possession of land. However, with the further development new interactions came into being where there were damages in diverse situations and were covered under principles of liability recognized under this branch of law. Therefore, the courts have recognized these situations as tort at different stages of history because of prevalence of certain factors. These can be discussed as under –

• INDUSTRIALIZATION: It evolved from the agrarian economy and it brought the advent of manufacture of goods. Thus the relationship between the employer and the employee came into existence also the employer has to deal with the third parties and the liability arising out of the relationship. Thus the concept of vicarious liability evolved due to the manufacture’s duty of taking
• URBANIZATION: With the advent of the urbanization, complex relationship came into existence and the life became dependent upon others. Consequently, new forms of duty got recognized, which in turn gives birth to new tortuous liabilities.
• PROFESSIONALISM: Presently it is an era of professionalism. Being educated does not mean that an individual can handle all his or her affairs. Therefore, modern life is In such case the standard duty of care became of special nature. This duty of care is more than that of an average prudent man. Therefore, this factor has further led to expansion of principle of liability.
• INDUSTRIAL HAZARDS: Presently hazardous activities pose greater danger to the life an No doubt these industries contribute towards development but the inherent danger cautions for stricter principle of liability. Therefore, with the coming of industrialization, hazardous industries also came into being under the purview of Law of Torts due to its hazards and high level of risk was evolved in it. For this new laws and remedies were thought of for proper indemnification of the injured.

           Scientific and Technological Advancements: Scientific and technological methods at the different stages of history have contributed towards the expansion of the scope of tortuous liability. For example, it was 19th century railways and twentieth century Motor Vehicle which contributed to increase in the incidence of negligence. The printing press and other methods of communication and publication further increased the scope of defamation. New modes of communication through internet and cyber space gives rise to a new dimension to tortuous liability in the form of different cyber torts.

            The nature of liability is also expanding because of these developments like every presence of motor vehicle is being taken as hazard and the Motor Vehicle Act recognizes strict liability for an accident asking of the motor vehicle to some extent.

HERE ARE CERTAIN EMERGING TRENDS OF TORTUOUS LIABILITY

1. Cyber torts
2. No fault liability
3. Liability of state
4. Consumer protection
5. Liability of multinational companies
6. Motor vehicle act and law of torts
7. Environmental damage
8. Public insurance liability act and law of torts

CYBER TORTS

            The term ‘Cyber Tort’ is a misnomer. This term has nowhere been defined in any statute /Act passed or enacted by the Indian Parliament. The concept of cyber tort is not radically different from the concept of conventional tort. Both include conduct whether act or omission, which causes breach of rights, vested in the persons and counterbalanced by the sanction of the state.

DEFINITION

            The general existence of the rights that torts law protects can be described gradually instead of the previous definition, but generally speaking.

            The violation and invasion of the individual and property is most clearly safeguarded for personal protection. When incompetence is noticed it is evident that this offense is often important to ensure that other citizens are not harmed by their unjust acts and omissions. Nuisance helps to protect a landowner from safety or comfort risk behavior on nearby land.

            Torts of land violation and products interference shall protect properties. Nuisance and Ryland’s Fletcher also support the country without wrongdoers in all situations by remedying unlawful interference in land usage or harm incurred by such interventions or incompetence. In the absence of property failure, neglect should also play a role.

            An individual’s dignity is compromised by violence. In this respect, the equitable redress possible for breaches of privacy cannot be overlooked, but not just in the tort laws and the growing consequences of the European Convention on Human Rights. This will lead to preserving privacy by avoiding real, unsafe publishing information.

            Failure of the business is an unusual occurrence. Damages to the financial injuries of the claimant are assessed, but the extent of the claim for damages is restricted by what is defined as ‘mere financial damage.’ The company may be protected from unfair competition by errors of ‘economic’ character, misleading mistakes, dismissals and trade interference. The financial damage shall also be compensated if contract law is correct system.

MODE AND MANNER OF COMMITING CYBER TORTS

1. HARASSMENT VIA E-MAILS

This form of behavior relates to giving the victim a huge volume of mail, which can inevitably crash into a person or business or even mail server.

                E-mail stalking is not a novel phenomenon. It’s really much like mail abuse. As if we picture a lady who was constantly physically stalking her, her ex-partner gave her e-mails and harassed her. This is a recurrent form of bullying by e- mails.

2. CYBER-STALKING

Stalking is a ‘stealthy’ term described by Oxford. Cyber bullying entails tracking a person’s internet activities by publishing (sometimes threatening) comments on the victim frequented newsletters, reaches the victim’s chat rooms, continuously bombarding the victims with emails etc.

3. DISSEMINATION OF OBSCENE MATERIAL/ INDECENT EXPOSURE/ PORNOGRAPHY (BASICALLY CHILD PORNOGRAPHY) / POLLUTING THROUGH INDECENT EXPOSURE

Net pornography may take various forms. The maintenance of the website for such illegal materials can be used. Computers are used to create such disgusting objects. Obscene products, streaming over the Phone. These filthy items will destroy the mind and deprave or corrupt the mind of the teenager. Delhi Bal Bharati case and the Bombay case are two documented instances of pornography, where two Swiss couples pushed obscene photographers into the slum baby. Police detained later in Mumbai them.

4. DEFAMATION

It means imputing any individual who is bent on lowering the figure of the right minds of society in general or shunning it or avoiding it or exposing it to hate, contempt or ridicule. Except for the presence of a virtual medium, cyber defamation is not distinct from regular defamation. For examples, Rohit’s mail account was hacked and some mails were sent from his account for his affair with a girl with the intention of defaming his batch mates him.

5. UNAUTHORIZED CONTROL/ACCESS OVER COMPUTER SYSTEM

Hacking is generally recognized as this operation. However, the Indian statute connotes the word hacking differently so we won’t use the phrase ‘unauthorized entry’ interchangeably with the word ‘hacking,’ since the concept in the Act of 2000 is much broader than the phrase hacking.

6. E MAIL SPOOFING

A spoofed e-mail may be said to be one, which misrepresents its origin. It this activity is commonly recognized as Hacking. However, we use the term ‘unexploited access’ in the Indian statue differently from ‘hacking,’ as in the 2000 Act the definition is much broader than the expression. The Indian Statute uses the word hacking differently Rajesh Manyar.

7. TRANSMITTING VIRUS/WORMS

Viruses are programs which link to a machine or a file and then spread to other network files and computers. You may normally alter or erase the details on a computer. Worms don’t have to bind to the egg, as opposed to viruses. You just copy mechanically yourself, and do so again and again before you fill up all the room on your screen. E.g. love bug virus impacting at least 5% of the world’s computers. The damages totaled 10 million dollars. Robert Morris’s internet worm sometime in 1988 almost finished the creation of the internet the world’s most famous worm was the halt.

8. TROJAN ATTACKS

The term ‘Trojan horse’ has its roots. Throughout the area of computing, the word indicates an illegal system which is actively regulated by the approved system. E-mail is the most popular way to mount a Trojan. For e.g., while chatting a Trojan was mounted in a lady film director’s machine in the U.S. Her naked pictures have been taken by the cyber thief using the camera mounted in her device. He abused this much further lady.

9. INTELLECTUAL PROPERTY TORTS / DISTRIBUTION OF PIRATED SOFTWARE

IP is a set of rights. Intellectual property. Any criminal act that fully or partly deprives the plaintiff of his property is a crime. In a land mark verdict, Hyderabad Court convicted three individuals and sentenced them to six months’ incarceration and 50’000 each in return for illegal copying and selling pirated copies. The general form of breach of IPR can be said to be software pirating, patented misuse, patent and service mark infringement, robberies of computer code, etc. software.

10. DATA DIDDLING

This kind of an attack involves altering raw data just before a computer processes it and then changing it back after the processing is completed. The electricity board faced similar problem of data diddling while the department was being computerized.

11. FRAUD & CHEATING

Online fraud and cheating is one of the most lucrative businesses that are growing today in the cyber space. It may assume different forms. Some of the cases of online fraud and cheating that have come to light are those pertaining to credit card crimes, contractual crimes.

FIRST CYBER TORT LITIGATION IN INDIA

            In India, cyber-criminal prosecutions have started with the first lawsuit against C 1 India Pvt. seeking damages under Indian Cyber Law being filed by Bangalore-based Antares Systems Ltd. Ltd and four others. And four others.

            C1 India is the US business Commerce1’s New Delhi subsidiary. The electronic tendering company pioneer, Antares Systems, has created the Tender Wizard e- tender. As part of the collaboration on the e-procurement project of Andhra Pradesh, C1 India joined hands with Antares to bid.

            “Antares exchanged its user name and password for online assessment at the insistence of C I India Pvt. Ltd during the preparatory phase. After the e- procurement program has been tendered effectively, C 1 India dumped Antares, “says Pavan Duggal, the lawyer of the Supreme Court, on the basis of a petition.

            The issue was put before Prakash Kumar, the IT Act 2000 Adjudicator and the Government of Delhi’s Special Secretary (IT). The problem was delayed until 13 August. 15 At a cost of 24 percent annually Antares received losses of Rs. 25 lakhs with interest. A redress has been given under Indian internet law for the award of statutory damages by insurance.

            A judge can award damage to a limit of Rs1 crore according to Section 43 of the IT Act 2000. Such legislative redress has been given by legislators if an individual has access to or secures access to such devices, computer systems or computer networks without the owner’s permission or a compliant computer system.

            The lawsuit further notes that, without the complainant’s consent, the respondents have accessed and/or copied their data as well as information from the operating, computer system and computer networks of the complainant as well as derived data and information from it.

            The respondents also note that by copying the key features of Tender Wizard, the complainant’s app, their e-tendering solution has been created. Section 43 of the IT Act accounts for device and network destruction as the foundation of cyber laws in India system.

STATUTORY PROVISIONS

            The Indian Parliament thought that the resolution passed by the General Assembly approved by the United Nations Commission on Trade Law as the Model Legislation for Online Trading needed to be enforced. This culminated in the passage and enforcement of the Information Technology Legislation 2000 on 17 May 2000. The aim of this Act, in the preamble to the Indian Penal Code 1860, the Indian Evidence Act 1872, the Book Proof Act of 1891 and the Reserve Bank of India Act 1934, is to legalize e-commerce and update this legislation in a future way. The fundamental aim of incorporating amendments to these Acts is to comply with the 2000 Act. To monitor and efficiently govern the affairs of the virtual world.

            Recently, cyber bullying, cyber harassment, and cyber defamation have been found to be unsatisfactory in I.T. Act 2000. Furthermore, new cyber-tort types will emerge in future and 16 must be taken note of. It is often claimed. However, it is necessary to comply with the Criminal Code in the I.T. Act 2000 felonies.

CONCLUSION

            The human mind’s ability is unimaginable. Virtual torts from the virtual room cannot be eliminated. They can be tested really well. Experience is a testimony to the lack of the law to eradicate unjust actions fully from the world. The best path forward is to increase consciousness of people’s rights and responsibilities (as a mutual responsibility against the society) and to improve the implementation of laws. The Act is, without a doubt, a landmark move in the virtual environment. Further, we both accept that improvements to the IT Act are required to improve the efficacy of the battle against cyber-attacks. With a word of warning to the pro-legislative community, we should infer that it must be recalled that cyber law regulations are not rendered as rigid as to hinder market development and prove to be counterproductive-productive.

NO FAULT LIABILITY

            Negligence responsibility or Strict liability (or fault in criminal terminology, usually articulated through a mens rea requirement) is a concept that makes a person liable for injury and failure due to his actions and omission irrespective of wrongdoing and/or neglect. Strict liability is relevant in the case of torts.

            In tort law, a person without a fault finding is responsible narrowly (for example, incompetence or a tortuous intent). The complainant will prove only that the wrong has happened and that the perpetrator is responsible.

            No good faith and no measures have been provided by the defendant in the statement 17. Strict liability often applies to those engaged in hazardous or inherently dangerous ventures.

            The law laid down in Ryland’s v. Fletcher is commonly known as “Rule of strict liability” in Ryland’s v. Fletcher. In spite of several variations to the fairness of this statute, rather than the law of total accountability, it would be better to call it the regulation of strict liability.

            Strict liability is sometimes referred to as a total responsibility in which the complainant may justify the absence of a loss, even though the defendant does not have to show a violation.

            The statute places on the proceedings it finds to be inherently dangerous strict liability. It discourages irresponsible conduct and excessive harm by requiring prospective attorneys to take every precaution. It also simplifies the legal phase and makes it possible for the claimant to become much quicker.

            When the rule in M is formulated. C. Mehta v. United of India, supreme court The Supreme Court itself has declared responsibility as total liability recognized in this case and specifically specified that liability shall not be subject to any limitations as Ryland’s v. Fletcher has recognized.

            The defendant in Ryland’s v. Fletcher had a reservoir constructed by individual vendors around his property to provide his movement with energy. There were old disused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. The water accumulated in the reservoir burst down the shaft and destroyed the coal-mines of the appellant on the adjacent land. Although.

            The independent contractors had been, the defendant was unaware of the shafts and did not neglect. Although he was not careless, the defendant was held responsible.

            There should therefore be three important items for implementing this rule: 1) an individual must have brought certain dangerous stuff to his land. 18 2) The object carried or held on the ground by a human must then flee. 3) Non-natural application of land.

EXCEPTIONS TO THE RULE

            The following exceptions to the rule have been recognized by Ryland’s v. Fletcher and some other later cases:

1. Plaintiff’s own default;
2. Act of God;
3. Consent of the plaintiff;
4. Act of third party;
5. Statutory

POSITION IN INDIA

1. In India as in England the law of strict liability exists. However, considerable variance has been noted both in expanding the application of the strict liability provision and in restricting its duration.
2. In the case of motor vehicle collisions, fault without negligence was acknowledged. Earlier in the Minu B. Mehta v. Balakrishna, the Supreme Court ruled that the liability on behalf of the vehicle’s owner or insurance couldn’t occur without the vehicle’s possession or drivers being reckless. “Faulted responsibility” is acknowledged to a restricted degree under the Motor Vehicles Act, 1938. In compliance with Article 140 of the 1988 Act, the Rs.22000 can be sought as insurance in the case of a victims’ death without claiming or making any error on behalf of the claimant or the moving power of the car.
3. This figure is set in the Rs.50000 Rs, and in the case of their permanent injury.
4. The application for insurance shall not be denied for any act of damage, negligence or misconduct on the victim’s part of the above specified amount, nor shall the due reimbursement be diminished on grounds of responsibility for an incident victim’s incident. This means that in the event of a no blame compensation suit, as stated above, protection of involvement responsibility cannot be pleaded.
5. If the allegation meets the above specified amount of indemnification, the blame will, if appropriate, be the responsibility of the owner or driver of the vehicle established.

RULE OF ABSOLUTE LIABILITY

            In M. C. Mehta v. Union of India, on 4 and 6 December 1985, the Supreme Court dealt with allegations resulting from the leakage of the oil gasses of one of the Shriram food and fertilizer units in Delhi District, Delhi. Following this spill, one lawyer who worked at the Tis Hazari Court was reportedly dead and many others suffered as a result.

            The Supreme Court ruled in an audacious way that it was not constrained by English law in the 19th century and should establish a rule relevant to the existing social and economic circumstances in India. In contrast to the specific liability provision laid down in Ryland’s v. Fletcher, the concept of ‘Total liability’ was established in the Indian law. It specifically claimed that in the case of Ryland’s, the current law was under no exception.

            The High Court has now created a new provision that imposes total responsibility, which was previously not the case, for damage done by hazardous substances.

            If a corporation is involved in a risky or risky operation, then if there is an incident occurring in such a dangerous or dangerous practice, it can result in injury to everybody. The Corporation is solely and entirely liable for compensating all those impacted by the incident, for example, for the escape of poisonous pollution, and this responsibility is not open to any modifications in accordance with the tortuous concept of absolute transparency in Ryland’s v.

Fletcher’s law.

LIABILITY OF STATE IN THE TORTS

            In the English Common Law, the King was not responsible for the injustices of his servants; the King thus had little liability. However, since the Crown Prosecutions Act of 1947, in England, the status of the traditional rule in common law has shifted. Earlier, the King could not be charged either for good or for good in the context of his work allegedly approved or performed by his servants. As the functions of State have increased, the Crown Process Act was passed, and now, like a private individual, the Crown is liable for a crime committed by its servants. Likewise, in America, the 1946 Federal Torts Claims Act sets out the principles, which determine substantially the liability issue of the State.

            The problem of tortuous State transparency has given rise to various informed legal debates. In India, the responsibility of the State for the harm done by its employees is not controlled by statute. This is Article 300 of the 1950 Indian Constitution, which specifies the obligations of the Union or State in the government’s tortuous act.

            Section 176 of the Government of India Act of 1935 gave birth to Article 300 of the Constitution. The following is from section 32 of the Indian Government Act of 1915 whose origin is contained in section 65 of the Indian Government Act of 1858. Section 65 of the Indian Government Act, 1858 states that ‘All individuals and institutions shall, and must take, the same action in respect of India as they may against such a corporation.’ Hence it must be seen that the Indian government and the State government of each State shall observe the succession of an East India Corporation through the chain of legislation that commences with the Law of 1858. This indicates that the Government’s duty remains the same as that before 1858 of the East India Company.

            Article 300 reads as follows: (1) Subject to any provision made by Parliament or the Legislature of that State passed by virtue of powers conferred by this Constitution, the Government of India can sue or sue the name of the State any other individual can, subject to any provision made by it in respect of his respective affa (2) In situations when any legal proceedings pending at the outset of this Constitution was to be conducted to which the Dominion of India was member, the Union of India in such procedures is considered to have substituted the Dominion, and (b) any judicial action pending in favor to which a Province or an Indian State has become members is to have substituted the Province or the Indian State concerned. (2) The first section of the Article addresses the manner in which litigation and prosecutions can be conducted by or against the government. An outline of Article 300 includes This says that a State that complain, complain for and sue for the name of the Union of India, sue for the name of the State and sue for it.

            The second part of the provision provides, inter alia, that in cases of the same line as the Dominion of India, or a respective Indian State where the Union of India or a State is liable to sue or to be sued, the constitution might or might not have been prosecuted or prosecuted. The third section states that effective steps for the matter covered by Article 300(1 should be responsible for Parliament or the legislature of state to produce.

            The High Court of Calcutta also expressed its complete rejection in Nobin Chander V. Secretary of State for India of the complainant’s petition of loss against the unlawful refusal to enable him to sell such excisable liquors and drugs which resulted in the end of his company because the granting or denying of the license was a sovère process which was outside the reach of the law Since then, many judicial decisions have been focused on the difference between the sovereign and non-sovereign roles of the Power.

            The Law Commission, in its first 1956 report, held its focus on the need for substantive legislation in the form of the model of the Crown Procedure Act, 1947 to determine tortuous accountability for the state, in view of the ambiguity of State liability and the numerous judicial pronouncements. The Government’s (Liability in Torts) bill was introduced to Parliament in 1967, according to the Law Committee article, but has still not become a statute. The bill aims to establish the government’s responsibility to third parties in spite to the actions of its staff, agents and independent contractors.

            In this circumstance the Rajasthan High Court has declared that the matter is eligible to be put before the Supreme Court in the State of Rajasthan v. Vidyawati despite its conviction that the State of Rajasthan is wrongly liable. In this scenario, a Jeep government knocked a man who was killed in a collision. The Court dismissed the Rajasthan State’s appeal on the grounds of Sovereign Immunity and ruled that the State was responsible for the tort or errors of its officials. In this situation, there was not considered the difference between sovereign and non-sovereign powers, however the Court decided that, in keeping with Article 300 of the Constitution, the State was not responsible for ‘the Act of Power.’ The Rs. 15000/- fee was given to Petitioner Vidyawati. In this scenario, the Supreme Court stated that the security and democratic roles of the State in modern times are not supported by protection of the immunity of power focused on the old patriarchal conceptions of justice.

            Again, the Supreme Court has adopted a people-friendly stand in Kasturi Lal V, State of U.P. In this case the police confiscated the complainant’s suspected stolen gold. The head of the police station, which reportedly fled with gold to Pakistan was misappropriated later. As the challenged act is not a federal operation, the Supreme Court ruled. The Court considered no separate judgment from Vidyawati as it claimed had already been and faithfully enforced by the law after the case of P&O Steam Navigation Company. In a welfare nation where the operations of the State had grown immensely, the Court articulated its disappointment with this legal status and ordered the government to take appropriate statutory steps to resolve the condition in England under a variety of lines such as the Crown Prosecutions Act of 1947.

            The Court was also dismayed at the appellant’s situation, which could not grasp his position and be alleviated.

            Thus, not only has the Court overturned what seems to be the legal condition after the Vidyawati judgment, it has also enhanced the state’s obligation by appealing to the constitutional authority, under which a State is found in no way responsible for any wrong done by its servants in enforcing legislative powers.

            Although the Constitutional Bench of the Supreme Court has not overridden and reconsidered Kasturi Lal, a variety of texts and judicial opinions have expressed significant frustration at the issue. Consequently, by either restricting the amount or innovating modern remediation’s, the courts sought exit routes. N is an important choice that limits its ratio. V. State of A.P. Nagendra Rao & Company The State of Andhra Pradesh was kept accountable in this court for the injury to the appellant incurred by the inability by the State officials of the State to exercise their powers under the Necessary Goods Act of 1655. The Court observed that no democratic structure may encourage a boss to play with and pretend to be sovereign with the citizens of the land. It is unjust and unreasonable for the person to bring the State above the rules. There is little difference in the common context between sovereign and non-sovereign roles. Kasturi Lal ratio is possible where the constitutional body serves as a representative to these roles, but cannot be prosecuted before a court of law in exceptional and restricted cases law.

CONCLUDING REMARKS

            The conclusion in N. Nagendra Rao Company v. State of AP by the courts of Apex is also worthy of mention. The Court accepted the first Report from the Law Commission on the Statutory Allowance for State Liability in Britain in 1947 and the Federal Torts Compensation Act in the United States in 1946. It was also claimed that today’s principle of sovereign immunity is obsolete.

            Regrettably, the 1956 opinion of the Law Committee and the guidelines of the Supreme Court are also not followed. The unsatisfactory state in this regard in a welfare state is counter to social justice. The Court should obey the recent judgment of the Supreme Court instead of Kasturi in the absence of State liability law, in accordance with the social justice demanded by modifying terms and the notion of welfare state Lal.

CONSUMER PROTECTION

            Earlier there were very less provisions for the protection of the interests of the consumers but now to provide for the better protection of the interests of the consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and for matter connected with therewith the Consumer Protection Act was enacted in 1986.

            The Consumer Protection Act Will provide a customer with recourse by a specific court system, will not need to engage a prosecutor and should predict a much quicker resolution. To date, the legal charge for filing a petition has not been payable but each case must be followed by the volume of court fee available since the Consumer Safety (amendment) Act, 2002 prescribed.

            The principle of consumer protection is essentially the protection of the unwary customer against the trader, who might be unscrupulous in the quality of the saleable material to get rid of or the dictum of Caveat Emptor-Let buyer beware.

ENVIRONMENTAL DAMAGE AND TORTS

LIABILITY OF MULTINATIONAL COMPANIES

            The MNCs do not gain in the growth of investment. Rather, the people working in and live around them are considered to be environmental risks. Given its size, vast resources and scope, an MNC is not able to be controlled by a country awaiting investment to build a kind of job for its citizens. Industrial accidents in developing countries are increasing due to mismanagement and lack of MNCs in human lives. The MNCs gave the people and governments of third world countries suffering and disaster rather than wealth and resources. They hold a less or inferior view of individuals’ civil and political rights by practices that threaten their health and welfare. An example is Bhopal Gas Disaster. It’s rightly called Bhoposhima by Justice Krishna iyer. The unwieldy ecocides, between the dreams of the government, lubricate bureaucratic wheels and progester emissions as the need for the survival of a country, with MNCs with limitless exploitative appetites, infranation industrialists with initiative, strategies and money control at different rates, wooing political power and wheelbase

The period of mass damage began with Bhopal Gas Catastrophe and, tragically, it continues to unleash environmental disasters with chemical invasions. In reality, the “dieve devil,” the Union of Carbides that triggered the disaster, had the multinationals that invaded the ‘developing country’ as the hallmarks of wealth and benefit, and that it could wash hand by selling the deserted Bhopal plant to Dow Chemicals, even though it emanates toxic gasses and causes significant environmental harm. The number of victims and wounded people remains uncertain with great certainty; the real environmental degradation which is as permanent as it is today cannot be determined.

            It is unfortunate that Dow Chemicals asserted the remaining of the Relief Fund that canceled the environmental-hazardous pollution caused by the abandoned factory unit at Bhopal from the settlement between India and Union Carbide.

            The remainder of the unrepayable money has compounded interest and exceeded Rs. 1,505 crores (approximately $327 million). Rather aptly on 19 July 2004, the Supreme Court directed the Government of India to allocate to those 566,876 survivors of Bhopal whose appeals had been positive the balance remaining in the Union Carbide settlement settled.

            The establishment and functioning of any industry is governed by the following Acts of the Ministry of Environment and Forests (MoEF) besides the local zoning and land use laws of the States and Union Territories6:

1. The Water (Prevention and Control of Pollution) Act, 1974 -as amended from time to time (Water Act)
2. The Water (Prevention and Control of Pollution) Cess Act, 1977 as amended (Water Cess Act)
3. The Air (Prevention and Control of Pollution) Act, 1981 as amended (Air Act)
4. The Environment (Protection) Act, 1986 (EPA)
5. The Public Liability Insurance Act, 1991 as amended (PL Act)
6. The National Environment Tribunal Act,
7. The National Environment Appellate Authority Act,

Among these acts, the acts containing provisions relating to the Law of Torts are as follows:

ENVIRONMENT (PROTECTION) ACT, 1986- THE UMBRELLA

LEGISLATION

            This Act was designed to preserve and develop the atmosphere and its relations. In the Act, ‘environmental pollution’ (Section 2) is described as ‘the environment presences of any environmental pollutant (environmentally polluted includes all solids, liquids or gasses present in and within, air, water, soil, human beings, other living creatures and plants and property) environment.”

THE NATIONAL ENVIRONMENT TRIBUNAL ACT, 1995

            The Act forming tribunals to manage reimbursement determinations and disbursements was introduced in 1995 in the National Environment Tribunal. But the law still needs to be enacted. There is also a suggestion under consideration that such tribunals be merged with the Environment Appellate Authority (EAA), which was formed in 1997 through a statute to impose hear appeals on limitations on the places in which some industry’s activities or procedures … shouldn’t be carried out …

            It provides a National Environment Tribunal for an efficient and expeditious disposition of cases arising out of an accident, in an effort to mitigate and relieve harm to human, properties and the environment in relation to, or accidental, matters related therewith and accidental to, any dangerous material that arises in the handling of these incidents.

            In Section (1) of the Act, if any person (except a worker) has been killed or harmed, or any property or atmosphere affected as a consequence of an incident, the owner is responsible under all or any heads specified in the Schedule of the Act to provide compensations for any death, injury or harm. In fact, the suing party must not contend and maintain in any lawsuit for redress that any disability, illness or loss for which the claim was made is due to any person’s unlawful acts, neglect or default. Further, the Tribunal may equitably assign blame for liability to those who are liable for those actions, operations and procedures where the accidents, injury or harm incurred by an incident cannot be due to any particular action but are the combination or cumulative results of several of such practices, operations and prosecutions. (b) by the proprietor of the property on which the damage has been caused; (c) where there was a loss of life as a result of the incident, by either of his or her legal representatives; (d) by any official properly authorized by him or the entire of his or her legal representation or either of those legitimately allowed to do so by him person or holders of that land;

            The Act also provides that the court can take up cases for reimbursement suo moto, if it finds it necessary.

            This Act is thus a significant milestone in Access to Justice in Environmental Matters.

THE PUBLIC LIABILITY INSURANCE ACT,1991

            During the minutes of 2 and 3 December, 1984, in Bhopal, the demon of death secretly conquered millions of heart and lung and did not shake the gate. This not only deprives future generation of safe environment, but a poisonous gas spilled by MNC misled the natural life of the present and the future. More than 16000 infants, men and women have been laid dead, and over five lakhs have been maimed. A large quantity of water in one storage tank weighing 60 tons, triggering a flattened reaction, was reached during maintenance in the Methyl- Iso-Cyanide MIC facility. The north wind delivered to neighboring communities a toxic MIC mixture and other chemical products including Hydrogen Cyanide and Phosgene. People woke up with invisible gastrointestinal clouds, stingy eyes and fiery throats. The suffocating gas entered the lungs and created huge bubbles that filled the bodies of their own body fluids. Playing for survival here and there didn’t save people, because all the poison gas was impregnated.

So what’s in the Rule of Torts for the affected people?

            In 1991, India adopted a no-faults conditional indemnification under a General Liability Insurance Act (PLIA). It was changed in 1992, because the insurance undertakings declined to pay an amount without a minimum limit for the insurance providers. This while, in the case of death, severe injury, loss of job or harm to property, the PLIA imposed limitations on the sums to be charged to each person (preamble to that Act) involved. Throughout the PLIA, the policy was tried as a probability distribution test, requiring fixed premiums to be collected automatically as an emergency step. This will not only include Bhopal-like events, but the other Mini-Bhopal instances. There’s no proof, though – not so positive news for present or potential casualties, industrial accidents – that this PLIA account is being drawn on.

            The Act provides for the procurement of an immediate relief policy for the persons impacted by an accident when handling unsafe substances (as provided for in the Act) and for matters connected with them or incidental to them.7 It stipulates that each owner who handles any hazardous material has to conduct one or more insurance policies and provide for an insu-substance contract. The insurance policy provided by the owner shall not exceed the amount of the paid-up capital of any hazardous substance and that owner holds, or manages, and not more than fifty crore rupees, of any hazardous substance under administration.

            This law provides that when the Collector is told that a crash has taken place in any location within his authority, he shall check that such crash has happened and make ads suitable for requests for relief.

            As environmental problems are going to exist over all future generations, it is the duty of every person and nation to develop a fair principle by which the trans-national companies are responsible for their transfer to developing countries of hazardous technology, if this damages human lives or the environment without having left any escape after they pass to the subsidiary. A new law to combat TNC dangers and impose absolute liability should emerge based on the conventions and protocols of the United Nations documents and reports from the United Nations commissions. Environmental protection is a fundamental and intergenerational responsibility for the dignity of the whole of mankind irrespective of its growth, development or underdevelopment in the world committee of nations. Others would never be healthy for the world and human beings.

            The introduction of new constitutional rights for people, although not successfully enforced, cannot accomplish environmental protection. Environmental security. Catastrophe cannot be replicated often. The prevalent usage of tort claims against the MNCs reflects the inability of certain mechanisms of control or, rather, the absence – after Bhopal – in which victims/ claimants are reluctant to appeal to the tort rule in order to resolve the condition. In order to resolve the alleged ‘governance flaws’ in the management of MNC, impacted staff and communities developed partnerships with NGOs and public interest lawyers. The big issue is whether the judiciary, and especially within the system, will make up this deficit of tort?

MOTOR VEHICLE ACT,1988

            The 1988 Act allows hits and falls to be paid rather than for fault-free. It also allows proof-of-fault insurance award of the point of direct liability, which essentially ensures unconditional accountability in situations of injury. It also calls the award of insurance. It is proven that it takes a long time to determine payments. As of 31.3.19908 there were, from time to time, 11214 cases pending before the Motor Vehicle Injuries Tribunals in Delhi alone. Proposals that a formal scheme of payments payment should be significantly strengthened to the detriment of the claimant, vehicular proprietor and the insurance provider 32 The individual involved will then then acknowledge the lump sum payout approved in the standardized settlement arrangement or press their argument in the usual manner. channels.

Let’s consider the-Express Tours & Travels Pvt. event. V. National Excise Officer

            The question in the above case was that a cab hirer is responsible and thus responsible to pay service fee, as part of the Rent a Tax system developed under the Motor Vehicle Act 1988.

            It was believed that terms would be granted the same definition as the people in this trade during the reading of a taxation law. Given the term, the Scheme cites Clause 9 of the charges for the hire of motor cabin hires which states that there is no difference between rent and hire under the Motor Vehicle Act. If there was so a huge difference between the two expressions, the Rent-a-Cab scheme would have consistently used the word “rent” “rental fees” etc., instead of “hire” “hire charges.” The government intends to tax the provision of a service that entails the official recruitment / rental for a longer period of time; hire of motor cabs is therefore not excluded from the Service Tax.

            A perception of ‘faultless liability’ is a positive step in the case of motor vehicle collisions. When working on seeking forms and methods of compensating the perpetrator of the error, it should be in accordance with existing demands that no blame responsibility to pay to the maximum amount of damage in the case of motor vehicles is acknowledged accidents.

CONCLUSION

            The law of tort has developed and expanded with the development of the societies. The most primitive tort was of tort of trespass which provided remedies, when there was a direct interference in the position of land. As the scope of torts is ever increasing in this ever changing world new interactions came into being where there were damages in diverse situations and was covered under principles of liability recognized under this branch of law.

            Therefore, newer branches came upwards recognized by new laws, acts and tribunals. The 33 versions of torts that were in the laws previously were changed to acts with bulkier and diverse descriptions of laws and acts due to the changing trends in the tortuous liability.

            It became necessarily important to do so because of some of the greatest mishaps in INDIA such as Bhopal Gas Tragedy, one of the worst commercial industrial accidents in history named another Hiroshima of the Chemical Industry, while Krishna Iyer tends to classify it as a global catastrophe that kills thousands of individuals as the product of corporation’s delinquency.

            The vast technological development like cyber space led to the expansion of the scope of torts as it was going out of reach. As new rules are being developed and their practicability is being tested the kinds of torts are increasing hence it is ever changing. Hence laws come and go according to their acceptance in the country.

            Agreeing on the newly developed and required concept of tortious liability in mass damage contributing to environmental death trap, the Supreme Court saved this very important issue. The current generation has a duty to protect the future generations. Environmental laws cannot be based on a single ban; rather, a complex legislative and licensing system is required in accordance with the rules to ensure justice and efficacy. To that the extreme pressure on prosecutors to assess the nature of a criminal offense, total responsibility crimes were added.

            To that the extreme pressure of litigation and spell down motive for such crimes total responsibility charges is added. In spite of this, the regulations also provide for reduced sentences under situations where the defendant has no desire to do so. Yet still, invariably, fines extend to anyone who simply do not wish to breach the law.

            The new generation has a responsibility to secure the potential generations. A human has no right to use ecology at the cost of creation. This duty was acknowledged by the international community and many laws were drawn up to render humanity good to the nature of the natural environment. The UN charter shared a strong concern for the population still to be born after the death of millions of citizens. The conference in Sweden in 1972 clarified the crucial aim for the human race to preserve and develop the current and future generations’ natural climate. In addition to war, peace and development, international law started to govern the world.

            People are also entitled to a stable environmental climate and have a sacred duty to preserve and develop the world for the next generation. The General Assembly of the United Nations adopted in 1982 the World Compact for Biodiversity, specifying specifically that the states had the duty to transfer their natural heritage to future generations. In this context, a series of regulatory standards was introduced by the World Commission for Environment and Development WCED, led by Giro Harlen Bruntland, for a global conference.

            The Rio Earth Summit was organized by UNGA for this reason and to avoid the further environmental degradation and to restores harm that had already been done. (World Climate and Growth Committee, Our Shared Future, 1987) The key aspects of the ‘Earth Charter’ (also known as the ‘Rio Declaration’) which was enforced as part of the Public Responsibility Act of 1991 were the preservation of an ecological equilibrium, reduction and regulation of waste, the conservation of natural capital, disasters avoidance and economic growth. The aim is to provide an immediate relief by way of compensation for the individuals affected by the incident, while the owners of the “hazardous material” are “treated on no grounds of blame.” This was also due to the tariff.

            It is up to the judiciary to formulate effective approaches to deter discrimination at this moment of that popular knowledge of the freedoms and inability of constitutional agencies and entities to take decisive steps to implement substantive regulations. And equity needs to show the utmost inventiveness in the area of solutions, so as to provide relief in new situations.

            In conclusion, instead, it was imperative to expand the spectrum and particularly the Law of Torts to ensure proper justice for the masses in this globalizing era, with growing demographics, industrial activities. And it is apparent that in order to recognize the new patterns of responsibility that occur after a crime is committed, this area of law involves thorough study and careful examination. This can only be done because the researcher “Law becomes the great engine of humanity. The urge to create, and the desire to kill, is freed. And if war is able to separate us, law will bind us – by terror, affection or purpose, or all three. Law is the greatest creation of mankind. Offer man in his planet all the remaining supremacy. Law offers him the expertise himself.

REFERENCES

1. Bangia R.K. (2006), “The Law of Torts”, Allahabad Law Agency, Faridabad
2. Barrie Peter (2002), “Compensation for personal injuries”, Oxford University Press, New York
3. Bermingham Vera (2005), “Nutcases”, Sweet & Maxwell Limited, London
4. Harpwood Vivienne (1994), “Law of Tort”, Cavendish Publishing Limited, London
5. McBride Nicholas J & Roderick Bagshaw (2003),” Tort Law”. Pearson Education Limited, New Delhi
6. Nagpal R., “What is cybercrime?”
7. Pannett Alan J (1995) “Law of Torts” Pitman Publishing, London
8. Ratanlal & Dhirajlal (2004), “The Law of Torts”, Wadhwa & company, Nagpur,
9. Rogers W.V.H (2006),” Winfield & Jolowicz on Tort”, Sweet & Maxwell Limited, London.
10. Singh S.P. (2006), “Law of Torts”, Universal Law Publishing Co., New Delhi Weir Tony (2004), “A Casebook on Tort”, Sweet & Maxwell Limited, London.
11. http://www.londonexternal.ac.uk/current_students/programme_resources/laws/subject_guides/tort/tort_ch4.pdf 36
12. http://delhicourts.nic.in/Mar07/United%20India%20Insurance%20Co.%20Vs.%20Kaushalya%20Devi.pdf
13. http://isebindia.com/95_99/99-01-1.html
14. http://www.telegraphindia.com/1030712/asp/business/story_2156681.asp
15. http://www.deccanherald.com http://www.sifynews.com
16. http://www.mvkini.com/areasofpractice/pictures/gettingthedeal.pdf.
17. http://www.legalservicesindia.com/articles/dct.htm
18. http://72.14.235.104/search?q=cache:1o6IkS4UQ8UJ:donovanlegal.com/surveytorts.pdf+development+of+new+trends+tort+law&hl=en&ct=clnk&cd=23 &gl=in.
19. http://www.brewerconsulting.co.uk/cases/CJ0506RR.htm
20. http://www.gillhams.com/dictionary/319.cfm

Authored By:

GAURAV BHATIA

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post EMERGING TRENDS IN LAW OF TORTS appeared first on Legal Desire Media and Insights.

The word ‘tort’ is derived from a Latin term ‘tortum’ which means ‘to twist’. Hence, ‘tort’ means “a conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful”.

In simple words it is the equivalent of the English term – “wrong”.

The law of torts consists of various ‘torts’/wrongful acts wherein the wrongdoer violates the legal rights of another individual. The law imposes a duty on everyone to respect the legal rights vested in every member of the society; and further, a breach in this duty leads to a ‘wrongful act’.

Thus, ‘tort’ is a breach of duty recognized under the Law of Torts.

According to S.2(m) of the Limitation act,1963 –

“Tort means a civil wrong, which is not exclusively a breach of contract or breach of trust.” Furthermore,

According to Salmon

“It’s a civil wrong for which the remedy is a common law action for unliquidated damages and which isn’t exclusively the breach of a trust or other merely equitable obligation.”

Basically, the common factors in all the definitions given by various thinkers, such as Salmon, Winfield and Fraser are:

1. Tort is a civil wrong, and
2. Every civil wrong isn’t a tort

PART – I: ESSENTIALS FOR A ‘WRONGFUL ACT’ TO BE A TORT

1. There must be in/omission on the part of the defendant –

In order for any ‘wrongful act’ to be considered a tort, (or) for any individual be liable for tort, he must have acted in a way that he wasn’t supposed to or, omitted to act in the manner he was supposed to.

Few examples supporting the above-mentioned definition are as follows;

• negligent behavior
• defamation, or
• trespassing

2. The act / omission should have led to a legal damage (Injuria), i.e., violation of a legal right of the plaintiff –

It is the responsibility of the plaintiff to prove to the court that there was a wrongful act-act or omission- which leads to a breach of legal duty or violation of the plaintiff’s legal right. Thus, unless there’s a violation, there can be no action against the wrong doer in Law of Torts.

The above statement can be expressed by a Latin maxim “Injuria sine damno.”

To understand it better, it can be broken into 2 main parts- First; Injuria, means to violate/breach a right conferred by the laws on the plaintiffs or in unauthorized intrusion of the plaintiff’s right. Second; Damno means a substantial amount of harm- in terms of wealth, comfort or health- that’s caused to the plaintiff.

Hence, Injuria since damno, means where there’s been a violation of the plaintiff’s legal right coupled with the amount of harm done, the plaintiff can and should go to the court, no matter how trivial it may seem, because no breach of a legal right should go un-addressed.

NEGLIGENCE

There are various definitions for negligence.

According to Winfield and Jolowicz – “Negligence is the breach of a legal duty to take care, which results in the damage, undesired; by the defendant to the plaintiff.” Where’s, according to Lord Wright – “Negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.” and according to the apex Court in Jacob Mathew v. State of Punjab observed that “Negligence is the breach of duty cause by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a reasonable and prudent man wouldn’t do. Where’s, actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing care, by which the neglect the plaintiff has suffered injury to his person/property.”

In all the above mentioned definitions, we can conclude that Negligence has 3 main constituents, i.e., a legal duty to exercise due care on part of the concerned party, Breach of said duty, and Consequential damages.

NEGLIGENCE – AS A TORT AND A CRIME, AND NEGLIGENCE UNDER CONSUMER PROTECTION LEGISLATIONS

NEGLIGENCE AS A TORT

As mentioned in chapter 1, Tort is a civil wrong; the duties and rights in tort is fixed by the law; the duties are owed in rem, i.e., to the world at large; and all wrongful acts can be remedied by filing for unliquidated damages.

NEGLIGENCE AS A CRIME

It is a well-known fact that for any action to be deemed as criminal, there needs to be men’s rea, i.e., intention or a guilty mind, regardless of the final act of the wrong-doer. Hence, if there is a guilty mind the (medical) professional will be held liable. It is equally important to remember that under Criminal Law, rashness and recklessness mounts to crime. Thus, to prove medical-criminal negligence against a professional, the degree of rashness and recklessness needs to be much higher.

Distinguishing the difference between negligence as a tort and as a crime, the Supreme Court, in Jacob Mathew v. State of Punjab, observed,

“To fasten liability in Criminal Law, the degree of Negligence has to be much greater             in comparison of negligence enough to fasten liability for damages in Civil Law.

The essential ingredient – mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R v. Lawrence2, Lord Diplock spoke in a 5-judge bench (with all the others in agreement). He reiterated his opinion in R v. Caldwell3, and dealt with the concept of recklessness as constituting mens rea in Criminal Law. His Lordship warned against adopting a simplistic approach of treating all problems of a criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent person to the possibility that his act was capable of causing the kind of serious harmful consequences occurring was not so slight that an ordinary prudent person would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being   any such risk or having recognized that there was such risk, he nevertheless goes on to do it.”

NEGLIGENCE UNDER THE CONSUMER PROTECTION LEGISLATION

Ever since professions have been included under the purview of consumer protection laws; medical practitioners too have felt the heat. It is on a footing different from any other kind of negligence.

Under consumer protection laws, medical negligence is another form of deficiency in service. It is most akin to the liability under the law of torts. But there is stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.

Admittedly, doctors have an extremely difficult duty to perform. They are the ones in whose hands a patient place what is most valuable to each human – their lives. It is for this reason that doctors are expected to exercise a very high degree of skill and care, but this is also the precise reason why they should not be inhibited in the exercise of their duty. Therefore, the laws imposing liability on medical practitioners have been tailored to accord to practitioner’s maximum possible protection.

NEGLIGENCE BY A PROFESSIONAL

In the law of negligence, professionals such as lawyers, doctors, architect. In the category are persons professing a particular skill. any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possess the requisite skill for performing the task. The apex Court in Jacob Mathew v. State of Punjab, explained:

“any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill he professes to possess shall be exercised and exercised with reasonable degree or care and caution. He does not assure the client of the result. a lawyer does not tell his client that he will win the case in all circumstances. a physician does not guarantee full recovery of his patient in every case. a surgeon cannot and does not guarantee that the result surgery will be beneficial, much less to the extent of 100% for the person to be operated on. The only assurance that such a professional can give is that he possesses the requisite skill in that particular branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all, what the person approaching the professional can and should expect. Judged by this standard, a professional may be held liable for negligence on one out of two findings: either he was not possessing the requisite kill which he professed to have possessed, or, he did not exercise, with reasonable care, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary, competent person exercising ordinary skill in that profession.”

MEDICAL NEGLIGENCE IN THE INDIAN SENARIO

Of late, the Indian society is experiencing an increase in awareness when it comes to patients’ rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability. By and large these litigate claims are preferred claiming redressal for the suffering caused due to medical negligence, vitiated consent, breach of confidentiality arising out of doctor-patient relationship. The controversial Supreme Court is ruling as to the application of Consumer Protection Act, 1986 (COPRA) to the medical profession apparently gave fillip to such development. This patient-centre initiative of rights protection is required to be appreciated in the economic context of rapid decline of State spending and massive private investment in the sphere of health care system, and the Indian Supreme Courts’ painstaking efforts to Constitutionalist “Right to Health” as a fundamental right. The obtaining indicators point towards further entrenchment of such pursuit for protection of patients’ rights in the days to come. as of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law principles relation to negligence, vitiated consent and breach of confidentiality. In the process, the adjudication forums caught between competing and conflicting interpretations of English and American legal principles. In view of the fact these issues depend of identified standards of care, application of foreign principles seemingly devoid of social and cultural relevance would undoubtedly lead to arbitrary decisions. as a result, either the patients’ or the professionals’ interests would be in jeopardy.

RIGHTS OF A PATIENT

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.

Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.

Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health centre.

Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require doing so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.

Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.

Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.

Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.

Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. after radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.

Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevant – as acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. as evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them.

Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.

Right to choose or select the source for buying medicines or doing tests – as a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic centre or laboratory registered beneath the National Accreditation Board for Laboratories (NaBL).

Right to choose or select proper referral and transfer, which is free from contradictory commercial influences – If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”

Right to protection for the patients who are involved in the clinical trials – Consistent with the Ministry of Health and Family Welfare (MoHFW), “all scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt.

Of India as good as all applicable statutory provisions of amended drugs and Cosmetics act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.

Right to get the education that a patient requires to know about his ailment   or disease – There’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well- being coverage schemes significant to them, relevant entitlements (for charitable hospitals) and how to search redressal of grievances.

Right to be heard and seek redressal about his ailment or disease – Last but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides,” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.

PART II: BACKGROUND

ESSENTIALS OF NEGLIGENCE

In an action for negligence, the plaintiff has to prove the following essentials:

DUTY TO TAKE CARE

One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element. In Grant v. Australian Knitting Mills Ltd.4, the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

DUTY TO WHOM

Donoghue v. Stevenson5, carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbor. Explaining so as to who is my neighbor LORD aTKIN said that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

DUTY MUST BE TOWARDS THE PLAINTIFF

It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.

In Bourhill v. Young6, the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor- cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

BREACH OF DUTY TO TAKE CARE

Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty.

In Municipal Corporation of Delhi v. Subhagwanti7, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable.

In Municipal Corporation of Delhi v. Sushila Devi8; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF

The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following classes: –

1. physical harm, i.e. harm to body;
2. harm to reputation;
3. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
4. economic loss; and
5. mental harm or nervous shock.

In Achutrao Haribhau Khodwa v. State of Maharashtra9; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

ESSENTIALS OF MEDICAL NEGLIGENCE

DOCTOR’S DUTY TO ATTEND THE PATIENT WITH CARE

Medicine is such a profession where a practitioner is supposed to have requisite knowledge and skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with the patient. The standard of the care depends upon the nature of the profession. a surgeon or anesthetist will be determined by the standard of average practitioner in that field while in case of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his surveillance and the patient dies or becomes victim of consequences which could have been avoided with due care from the doctor, the doctor can be held liable under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.

Moreover, the liability of the doctor cannot be invoked now and then and he can’t be held liable just because something has gone wrong. For fastening the liability, very high degree of such negligence was required to be proved. a doctor or a medical practitioner when attends to his patients, owes him the following duties of care:

A DUTY OF CARE IN DECIDING WHETHER TO UNDERTAKE THE CASE

A DUTY OF CARE IN DECIDING WHAT TREATMENT TO GIVE

A DUTY OF CARE IN THE ADMINISTRATION OF THE TREATMENT

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of specialty, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.

DOCTOR ACTING IN A NEGLIGENT MANNER

It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle and the said principle is intended to assist the claimant. Res Ipso loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have been able to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. a doctor is not an insurer for the patient, inability to cure the patient would not amount to negligence but carelessness resulting in adverse condition of the patient would.

In Gian Chand v. Vinod Kumar Sharma it was held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence.

Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetist can provide ample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anesthesia the patient died and the doctor was held liable for the same.

DUTIES AND LIBILITY OF A MEDICAL PROFESSIONAL

WHAT ARE THE DUTIES OF A MEDICAL PRACTITIONER TOWARDS A PATIENT?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made under Indian Medical Council act, 1956.

Obligation to sick – a physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. a doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.

Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.

Patience, Delicacy, and Secrecy – a physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.

The Patient must not be neglected – a physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. after undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.

Engagement for an Obstetric case – When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

ACTS OF MISCONDUCT

abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.

Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.

Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

LIABILITY OF A MEDICAL PRACTITIONER IN CASE OF MEDICAL NEGLIGENCE

The liability of the person committing the wrong can be of three types depending on the harm or the injury suffered by the injured person they are

CIVIL LIABILITY

Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional, they are held to be vicariously liable for such wrong committed. and are liable to pay damages in the form of compensation. at times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors.

If someone is an employee of a hospital, the hospital is responsible if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. In Mr. M Ramesh Reddy v. State of Andhra Pradesh10, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. a compensation of Rs. 1 Lac was awarded against the hospital.

CRIMINAL LIABILITY

There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304a of the Indian Penal Code for allegedly causing death by rash or negligent act. according to S. 304a of the IPC, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both. Hospitals can be charged with negligence for transmission of infection including HIV, HBsag, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care. My very own grandmother passed away due to the negligence of the doctors. Due to the carelessness of the doctor that he was in no hurry to rush for his next operation that he forgot to sterilize the equipment’s and as a result there was this transmission of some infection into her blood which infected her entire system and ultimately resulted in her death.

Further in Dr. Suresh Gupta’s Case11 – Supreme Court of India, 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304a of Indian Penal Code, 1860 will apply. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-a, 337 and 338 contain the law of medical malpractice in India.

The conduct of medical malpractice was brought under the Consumer Protection act, 1986, due to the landmark case of the Indian Medical association vs. V. P. Shantha & others12, the judgment in this case defined medical care as a “service” that was covered under the act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.

• -The service provided was not free of charge or for a
• nominal registration fee;
• -If free, the charges were waived because of the patient’s inability to pay;
• -The service was at a private hospital that charges all patients; or any service rendered which was paid for by an insurance firm.

This meant that certain categories of patients could now sue errant health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient.

PART III: DISCUSSION AND ANALYSIS

IMPACTFUL CASES OF MEDICAL NEGLIGENCE IN INDIA

PART IV: CONCLUSION

In India almost every day there is a case of medical negligence which is seen. It is seen in the big as well as in the small hospitals, clinics, dispensaries etc. Due to this a number of people are suffering in our country. The most common type of medical negligence is seen in operations and during the delivery of the child etc. a number of cases has been filed against doctors who negligently leave their surgical instruments in the body of the patient etc., still a number of doctors leave their instruments in the stomach of the patient which could be fatal. In India doctors are treated as gods, hence when some kind of negligent acts are carried out by them, they think that it was the wish of god and don’t make the doctor responsible for this. Illiteracy is another big factor that is not letting our people to know what kinds of wrongs are being committed in our country. Our country is facing a terrible time today as the doctors also are taking advantage of poor people and are making their service sector, a profit oriented sector and changing their vision from providing good health to gaining profits from innocent people by asking them to undergo 1000 tests before treating them for a common cold. The environment in the hospitals like the cleanliness etc. is also not maintained by most of the hospitals not only in the rural region but also in the urban region which results in the spread of communicable diseases faster and easier. The relaxed behavior by the people, by the hospital authorities and the government officers who check these places has resulted in the relaxed behavior of the doctors, which is the main reason that the number of cases of medical negligence is increasing. In my opinion if the common people with the support of the government impose rules on these hospitals and also see to it that these rules are implemented then there is a chance that the standards of our hospitals would improve and automatically the skill and knowledge of specialized and authorized doctors would be used to the fullest. We must also spread awareness in the rural areas [especially] so that poor people don’t get exploited and fight for their rights and ask for the required remedy from the medical practitioner causing them the harm.

INTRODUCTION TO LAW OF TORTS

The word ‘tort’ is derived from a Latin term ‘tortum’ which means ‘to twist’. Hence, ‘tort’ means “a conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful”.

In simple words it is the equivalent of the English term – “wrong”.

The law of torts consists of various ‘torts’/wrongful acts wherein the wrongdoer violates the legal rights of another individual. The law imposes a duty on everyone to respect the legal rights vested in every member of the society; and further, a breach in this duty leads to a ‘wrongful act’.

Thus, ‘tort’ is a breach of duty recognized under the Law of Torts.

According to S.2(m) of the Limitation act,1963 –

“Tort means a civil wrong, which is not exclusively a breach of contract or breach of trust.” Furthermore,

According to Salmon

“It’s a civil wrong for which the remedy is a common law action for unliquidated damages and which isn’t exclusively the breach of a trust or other merely equitable obligation.”

Basically, the common factors in all the definitions given by various thinkers, such as Salmon, Winfield and Fraser are:

1. Tort is a civil wrong, and
2. Every civil wrong isn’t a tort

PART – I: ESSENTIALS FOR A ‘WRONGFUL ACT’ TO BE A TORT

1. There must be in/omission on the part of the defendant –

In order for any ‘wrongful act’ to be considered a tort, (or) for any individual be liable for tort, he must have acted in a way that he wasn’t supposed to or, omitted to act in the manner he was supposed to.

Few examples supporting the above-mentioned definition are as follows;

• negligent behavior
• defamation, or
• trespassing

2. The act / omission should have led to a legal damage (Injuria), i.e., violation of a legal right of the plaintiff –

It is the responsibility of the plaintiff to prove to the court that there was a wrongful act-act or omission- which leads to a breach of legal duty or violation of the plaintiff’s legal right. Thus, unless there’s a violation, there can be no action against the wrong doer in Law of Torts.

The above statement can be expressed by a Latin maxim “Injuria sine damno.”

To understand it better, it can be broken into 2 main parts- First; Injuria, means to violate/breach a right conferred by the laws on the plaintiffs or in unauthorized intrusion of the plaintiff’s right. Second; Damno means a substantial amount of harm- in terms of wealth, comfort or health- that’s caused to the plaintiff.

Hence, Injuria since damno, means where there’s been a violation of the plaintiff’s legal right coupled with the amount of harm done, the plaintiff can and should go to the court, no matter how trivial it may seem, because no breach of a legal right should go un-addressed.

NEGLIGENCE

There are various definitions for negligence.

According to Winfield and Jolowicz – “Negligence is the breach of a legal duty to take care, which results in the damage, undesired; by the defendant to the plaintiff.” Where’s, according to Lord Wright – “Negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.” and according to the apex Court in Jacob Mathew v. State of Punjab observed that “Negligence is the breach of duty cause by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a reasonable and prudent man wouldn’t do. Where’s, actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing care, by which the neglect the plaintiff has suffered injury to his person/property.”

In all the above mentioned definitions, we can conclude that Negligence has 3 main constituents, i.e., a legal duty to exercise due care on part of the concerned party, Breach of said duty, and Consequential damages.

NEGLIGENCE – AS A TORT AND A CRIME, AND NEGLIGENCE UNDER CONSUMER PROTECTION LEGISLATIONS

NEGLIGENCE AS A TORT

As mentioned in chapter 1, Tort is a civil wrong; the duties and rights in tort is fixed by the law; the duties are owed in rem, i.e., to the world at large; and all wrongful acts can be remedied by filing for unliquidated damages.

NEGLIGENCE AS A CRIME

It is a well-known fact that for any action to be deemed as criminal, there needs to be men’s rea, i.e., intention or a guilty mind, regardless of the final act of the wrong-doer. Hence, if there is a guilty mind the (medical) professional will be held liable. It is equally important to remember that under Criminal Law, rashness and recklessness mounts to crime. Thus, to prove medical-criminal negligence against a professional, the degree of rashness and recklessness needs to be much higher.

Distinguishing the difference between negligence as a tort and as a crime, the Supreme Court, in Jacob Mathew v. State of Punjab, observed,

“To fasten liability in Criminal Law, the degree of Negligence has to be much greater             in comparison of negligence enough to fasten liability for damages in Civil Law.

The essential ingredient – mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R v. Lawrence2, Lord Diplock spoke in a 5-judge bench (with all the others in agreement). He reiterated his opinion in R v. Caldwell3, and dealt with the concept of recklessness as constituting mens rea in Criminal Law. His Lordship warned against adopting a simplistic approach of treating all problems of a criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent person to the possibility that his act was capable of causing the kind of serious harmful consequences occurring was not so slight that an ordinary prudent person would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being   any such risk or having recognized that there was such risk, he nevertheless goes on to do it.”

NEGLIGENCE UNDER THE CONSUMER PROTECTION LEGISLATION

Ever since professions have been included under the purview of consumer protection laws; medical practitioners too have felt the heat. It is on a footing different from any other kind of negligence.

Under consumer protection laws, medical negligence is another form of deficiency in service. It is most akin to the liability under the law of torts. But there is stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.

Admittedly, doctors have an extremely difficult duty to perform. They are the ones in whose hands a patient place what is most valuable to each human – their lives. It is for this reason that doctors are expected to exercise a very high degree of skill and care, but this is also the precise reason why they should not be inhibited in the exercise of their duty. Therefore, the laws imposing liability on medical practitioners have been tailored to accord to practitioner’s maximum possible protection.

NEGLIGENCE BY A PROFESSIONAL

In the law of negligence, professionals such as lawyers, doctors, architect. In the category are persons professing a particular skill. any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possess the requisite skill for performing the task. The apex Court in Jacob Mathew v. State of Punjab, explained:

“any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill he professes to possess shall be exercised and exercised with reasonable degree or care and caution. He does not assure the client of the result. a lawyer does not tell his client that he will win the case in all circumstances. a physician does not guarantee full recovery of his patient in every case. a surgeon cannot and does not guarantee that the result surgery will be beneficial, much less to the extent of 100% for the person to be operated on. The only assurance that such a professional can give is that he possesses the requisite skill in that particular branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all, what the person approaching the professional can and should expect. Judged by this standard, a professional may be held liable for negligence on one out of two findings: either he was not possessing the requisite kill which he professed to have possessed, or, he did not exercise, with reasonable care, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary, competent person exercising ordinary skill in that profession.”

MEDICAL NEGLIGENCE IN THE INDIAN SENARIO

Of late, the Indian society is experiencing an increase in awareness when it comes to patients’ rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability. By and large these litigate claims are preferred claiming redressal for the suffering caused due to medical negligence, vitiated consent, breach of confidentiality arising out of doctor-patient relationship. The controversial Supreme Court is ruling as to the application of Consumer Protection Act, 1986 (COPRA) to the medical profession apparently gave fillip to such development. This patient-centre initiative of rights protection is required to be appreciated in the economic context of rapid decline of State spending and massive private investment in the sphere of health care system, and the Indian Supreme Courts’ painstaking efforts to Constitutionalist “Right to Health” as a fundamental right. The obtaining indicators point towards further entrenchment of such pursuit for protection of patients’ rights in the days to come. as of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law principles relation to negligence, vitiated consent and breach of confidentiality. In the process, the adjudication forums caught between competing and conflicting interpretations of English and American legal principles. In view of the fact these issues depend of identified standards of care, application of foreign principles seemingly devoid of social and cultural relevance would undoubtedly lead to arbitrary decisions. as a result, either the patients’ or the professionals’ interests would be in jeopardy.

RIGHTS OF A PATIENT

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.

Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.

Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health centre.

Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require doing so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.

Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.

Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.

Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.

Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. after radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.

Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevant – as acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. as evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them.

Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.

Right to choose or select the source for buying medicines or doing tests – as a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic centre or laboratory registered beneath the National Accreditation Board for Laboratories (NaBL).

Right to choose or select proper referral and transfer, which is free from contradictory commercial influences – If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”

Right to protection for the patients who are involved in the clinical trials – Consistent with the Ministry of Health and Family Welfare (MoHFW), “all scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt.

Of India as good as all applicable statutory provisions of amended drugs and Cosmetics act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.

Right to get the education that a patient requires to know about his ailment   or disease – There’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well- being coverage schemes significant to them, relevant entitlements (for charitable hospitals) and how to search redressal of grievances.

Right to be heard and seek redressal about his ailment or disease – Last but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides,” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.

PART II: BACKGROUND

ESSENTIALS OF NEGLIGENCE

In an action for negligence, the plaintiff has to prove the following essentials:

DUTY TO TAKE CARE

One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element. In Grant v. Australian Knitting Mills Ltd.4, the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

DUTY TO WHOM

Donoghue v. Stevenson5, carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbor. Explaining so as to who is my neighbor LORD aTKIN said that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

DUTY MUST BE TOWARDS THE PLAINTIFF

It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.

In Bourhill v. Young6, the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor- cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

BREACH OF DUTY TO TAKE CARE

Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty.

In Municipal Corporation of Delhi v. Subhagwanti7, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable.

In Municipal Corporation of Delhi v. Sushila Devi8; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF

The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following classes: –

1. physical harm, i.e. harm to body;
2. harm to reputation;
3. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
4. economic loss; and
5. mental harm or nervous shock.

In Achutrao Haribhau Khodwa v. State of Maharashtra9; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

ESSENTIALS OF MEDICAL NEGLIGENCE

DOCTOR’S DUTY TO ATTEND THE PATIENT WITH CARE

Medicine is such a profession where a practitioner is supposed to have requisite knowledge and skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with the patient. The standard of the care depends upon the nature of the profession. a surgeon or anesthetist will be determined by the standard of average practitioner in that field while in case of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his surveillance and the patient dies or becomes victim of consequences which could have been avoided with due care from the doctor, the doctor can be held liable under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.

Moreover, the liability of the doctor cannot be invoked now and then and he can’t be held liable just because something has gone wrong. For fastening the liability, very high degree of such negligence was required to be proved. a doctor or a medical practitioner when attends to his patients, owes him the following duties of care:

A DUTY OF CARE IN DECIDING WHETHER TO UNDERTAKE THE CASE

A DUTY OF CARE IN DECIDING WHAT TREATMENT TO GIVE

A DUTY OF CARE IN THE ADMINISTRATION OF THE TREATMENT

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of specialty, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.

DOCTOR ACTING IN A NEGLIGENT MANNER

It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle and the said principle is intended to assist the claimant. Res Ipso loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have been able to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. a doctor is not an insurer for the patient, inability to cure the patient would not amount to negligence but carelessness resulting in adverse condition of the patient would.

In Gian Chand v. Vinod Kumar Sharma it was held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence.

Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetist can provide ample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anesthesia the patient died and the doctor was held liable for the same.

DUTIES AND LIBILITY OF A MEDICAL PROFESSIONAL

WHAT ARE THE DUTIES OF A MEDICAL PRACTITIONER TOWARDS A PATIENT?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made under Indian Medical Council act, 1956.

Obligation to sick – a physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. a doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.

Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.

Patience, Delicacy, and Secrecy – a physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.

The Patient must not be neglected – a physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. after undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.

Engagement for an Obstetric case – When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

ACTS OF MISCONDUCT

abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.

Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.

Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

LIABILITY OF A MEDICAL PRACTITIONER IN CASE OF MEDICAL NEGLIGENCE

The liability of the person committing the wrong can be of three types depending on the harm or the injury suffered by the injured person they are

CIVIL LIABILITY

Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional, they are held to be vicariously liable for such wrong committed. and are liable to pay damages in the form of compensation. at times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors.

If someone is an employee of a hospital, the hospital is responsible if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. In Mr. M Ramesh Reddy v. State of Andhra Pradesh10, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. a compensation of Rs. 1 Lac was awarded against the hospital.

CRIMINAL LIABILITY

There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304a of the Indian Penal Code for allegedly causing death by rash or negligent act. according to S. 304a of the IPC, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both. Hospitals can be charged with negligence for transmission of infection including HIV, HBsag, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care. My very own grandmother passed away due to the negligence of the doctors. Due to the carelessness of the doctor that he was in no hurry to rush for his next operation that he forgot to sterilize the equipment’s and as a result there was this transmission of some infection into her blood which infected her entire system and ultimately resulted in her death.

Further in Dr. Suresh Gupta’s Case11 – Supreme Court of India, 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304a of Indian Penal Code, 1860 will apply. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-a, 337 and 338 contain the law of medical malpractice in India.

The conduct of medical malpractice was brought under the Consumer Protection act, 1986, due to the landmark case of the Indian Medical association vs. V. P. Shantha & others12, the judgment in this case defined medical care as a “service” that was covered under the act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.

• -The service provided was not free of charge or for a
• nominal registration fee;
• -If free, the charges were waived because of the patient’s inability to pay;
• -The service was at a private hospital that charges all patients; or any service rendered which was paid for by an insurance firm.

This meant that certain categories of patients could now sue errant health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient.

PART III: DISCUSSION AND ANALYSIS

IMPACTFUL CASES OF MEDICAL NEGLIGENCE IN INDIA

PART IV: CONCLUSION

In India almost every day there is a case of medical negligence which is seen. It is seen in the big as well as in the small hospitals, clinics, dispensaries etc. Due to this a number of people are suffering in our country. The most common type of medical negligence is seen in operations and during the delivery of the child etc. a number of cases has been filed against doctors who negligently leave their surgical instruments in the body of the patient etc., still a number of doctors leave their instruments in the stomach of the patient which could be fatal. In India doctors are treated as gods, hence when some kind of negligent acts are carried out by them, they think that it was the wish of god and don’t make the doctor responsible for this. Illiteracy is another big factor that is not letting our people to know what kinds of wrongs are being committed in our country. Our country is facing a terrible time today as the doctors also are taking advantage of poor people and are making their service sector, a profit oriented sector and changing their vision from providing good health to gaining profits from innocent people by asking them to undergo 1000 tests before treating them for a common cold. The environment in the hospitals like the cleanliness etc. is also not maintained by most of the hospitals not only in the rural region but also in the urban region which results in the spread of communicable diseases faster and easier. The relaxed behavior by the people, by the hospital authorities and the government officers who check these places has resulted in the relaxed behavior of the doctors, which is the main reason that the number of cases of medical negligence is increasing. In my opinion if the common people with the support of the government impose rules on these hospitals and also see to it that these rules are implemented then there is a chance that the standards of our hospitals would improve and automatically the skill and knowledge of specialized and authorized doctors would be used to the fullest. We must also spread awareness in the rural areas [especially] so that poor people don’t get exploited and fight for their rights and ask for the required remedy from the medical practitioner causing them the harm.

REFERENCES

1. I.R 2005 S.C. 3180
2. [1981] 1 ALL ER 974 (HL)
3. 1981 (1) ALL ER 961 (HL)
4. 1935 AC 85;
5. 1932 AC 562
6. 1943 AC 92
7. AIR 1966 SC 1750
8. AIR 1999 SC 1929
9. (1996) 2 SCC 634
10. 2003 (1) CLD 81
11. 2004 6 SCC 422.
12. AIR 1996 SC 550
13. (2017) 5 SCC 776
14. (2014) 1 SCC 384
15. (2009) 3 SCC 1.

REFERENCES

1. I.R 2005 S.C. 3180
2. [1981] 1 ALL ER 974 (HL)
3. 1981 (1) ALL ER 961 (HL)
4. 1935 AC 85;
5. 1932 AC 562
6. 1943 AC 92
7. AIR 1966 SC 1750
8. AIR 1999 SC 1929
9. (1996) 2 SCC 634
10. 2003 (1) CLD 81
11. 2004 6 SCC 422.
12. AIR 1996 SC 550
13. (2017) 5 SCC 776
14. (2014) 1 SCC 384
15. (2009) 3 SCC 1.

Authored By: KEESHA KUMAR

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post MEDICAL NEGLIGENCE AND ITS IMPACT ON OUR RIGHTS, IN THE INDIAN CONTEXT appeared first on Legal Desire Media and Insights.

            The research paper has been attempted to address basic questions about the types of defamation, libel and slander, different forms of defamation; criminal and civil, and examined the position of cases falling under this.

            Mainly the work has been done with three objectives of the research paper;

• To examine the essentials constituents and Defences of defamation.
• To examine, Right to freedom of speech as one’s right and duty towards others.
• To examine the different conditions and grounds, where the relationship between parties becomes the barrier of defamation.

            The research paper has examined the value of the right to reputation and how, with the growing importance of human rights and freedom of speech, the balance is gradually getting more evened out between the two. It is to be kept in mind that the citation has been mentioned according to the guidelines of NTCC.

INTRODUCTION

            Defamation is an act of communicating false statement to malign or lower down or to form a bad opinion of someone, which ultimately injures someone’s reputation.

            It is a wrong done by a person to another by words, written or spoken, sign, or other visible representations; though our constitution provides the ‘Right to freedom of speech’, on the other hand, it protects the “Dignity and reputation” of one.

            Mere hasty expression spoken in anger, or vulgar abuse to which none would attribute any set purpose to injure the character would not amount to defaming a person.

The law has imposed a general duty on all person to refrain from making false, defamatory statements of fact about others

            According to Dr. Winfield, defamation can be defined as: “the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society, generally or, which tends to make them shun or avoid that person.”

            Examples: A posted a comment on B’s blog saying that the blog’s author had been in prison for 2 years. It certainly sounds like a defamatory statement if it is false.

DEFAMATORY STATEMENTS MADE VIA INTERNET ARE ALSO ACTIONABLE

            Quoting the current case which happened in May 20, “boys locker room” in which boys were body-shaming girls and even they mentioned about rape and performing it on an Instagram group named: BOYS LOCKER ROOM, although it was wrong, this never allowed others to bring their past event and portray on social media without any proof; many did that and started posting stories, how they were body-shamed, started tagging the boys who do such things with the girls, but no one stood up and checked the reality of the facts, because of ‘few fake facts’ an innocent boy named, Manav Singh, 17 yrs. young student of Heritage School, Gurugram committed suicide.

            Although social media is a great platform for generating awareness, spreading information, it does never permit someone to say such wrong words about someone that ultimately affects one’s mental health and stress forces them to take extreme action which will not only affect them but the people around them and the ‘society’ too.

            It is therefore, necessary to examine the freedom of speech, limitation under certain such laws they came into existence.

FORMS

            Defamation is actionable both under civil law and a criminal charge under section 499 and 500 of IPC.

CRIMINAL DEFAMATION

            Section 499 of IPC: “whoever by words either spoken or intended to be read, or by sign or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said to defame that person”.

            It’s a bailable, non-cognizable, and compoundable offense, which means no police can register a case and start an investigation without the court’s permission, and in a criminal case intended to defame is necessary.

            Punishment for the defamation under the criminal charges has been mentioned u/s 500 of IPC.

            Section 500 of IPC: “whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or both”.

            Case: Mr. M J Akbar filed criminal defamation case against a woman journalist, who accused him of sexual harassment.

            In which, M J Akbar filed the case through his advocates Karanjawala and co. against journalist Priya Ramani, who along with 10 other women, had accused him of sexual harassment.

CIVIL DEFAMATION

In civil matters of defamation, it need not necessarily follows as criminal offense.

            Civil defamation generally covered under the Law of Torts, which is actionable and attracts punishment in the form of damages.

            Under civil charges defendant never goes to jail, if found guilty, matters are resolved by awarding liquidated damages, where in a civil suit, intention to defame is not necessary.

            Case: In the matter of D.P. Choudhury v. Manjulata, the plaintiff-respondent, Manjulata about 17 years of age, belonged to a distinguished educated family of Jodhpur. She was a student of B.A. There was the publication of a news item in a local daily, Dainik Navjyoti, dated 18.12.77, that the last night 11 p.m. Manjulata had run away with a boy named Kamlesh after she went out of her house on the pretext of attending night classes in her college. The news item was untrue and was negligently published. It was held that all defamatory words are actionable per se and in such a case general damages will be presumed.

TYPES

There are two types of defamation: libel and slander

LIBEL

            It is a representation made in a permanent form that will harm the reputation of someone, writing, movie, pictures, etc. are such examples.

            For e.g., X printed some advertisement saying Y is bankrupt, whereas in fact Y was not so. Thus, such representation is a specific form.

SLANDER

            If the statement is made by oral words or gestures, then the defamation falls under slander.

            For e.g., A questions the chastity of B in an interview, such actions of A are slanderous.

METHODOLOGY

            In accordance with the objectives of the current study, the doctrinal method of research has been adopted. The doctrinal method has been used to examine various cases and incidents regarding the defamation.

OBJECTIVES

• To examine the essentials constituents and Defences of defamation;
• To examine, Right to freedom of speech as one’s right and duty towards others;
• To examine the different conditions and grounds, where the relationship between parties becomes the barrier of defamation.

ESSENTIALS

To establish defamation, a plaintiff normally must prove the following:

STATEMENT OF FACT

• Is whether the defendant made a statement of fact or a statement of opinion?
• A statement of fact is a statement that can be proved as being true or false with some standard objective.
• A statement or expression of opinion is a statement that a person believes to be true but it cannot be measured against an objective standard and is usually not actionable.
• g., X says that I think Y is a criminal. It’s not a defamatory statement as it is X’s opinion about the Y.

PUBLICATION REQUIRED

• Publication in the case of defamation means that the defamatory statements are communicated to a third person other than the defamed party (third party).
• Anyone who publishes or repeats defamatory statements is liable, even if publisher reveals the source of the statement. Both are jointly and severally liable for action.
• g., if A publishes an advertisement in a local newspaper stating false information that the company of B has committed fraud of Rs 10 crore. Now, this statement will amount to defamation as this newspaper will be read by many readers and will surely injure the reputation of B’s company.
• In Mahender Ram Vs. Hiranandani Prasad – In this case the defendant wrote a letter to defaming the plaintiff in Urdu script. But plaintiff did not know Urdu. Therefore, he made a third person to read it. It was held that if the defendant was unaware of the fact that the plaintiff was not knowing Urdu while writing the letter, and it would necessitate reading of the letter by a third person, then he exempted for his liability.
• Any means of publication is acceptable, the necessary element is that facts need to be defamatory and need to be communicated to a person more than the defamed party^[1].

DEFAMATORY AND FALSE STATEMENT

• The statement needs to be defamatory in nature, which means communication of such words needs to be there which will ultimately harm the reputation of the person
• Statement needs to be false, true facts are not considered under defamation.
• Each publication of defamatory statements will be considered as individual publication and the person will be liable according to it, and if the same person publishes the same statement again then he’ll be liable for the second communication of the same material.
• g., A publishes about B, that he was sent to jail for fraud and rape, but factually B was charged for fraud. Such statement will cover under defamation as false facts are been examined.
• P. Chaudhary vs. Kumari Manjulata – In this case, the defendant, a local newspaper publisher, published a statement that the plaintiff, a 17-year girl, ran away with her boyfriend. But literally, she went to attend her evening classes. In this case the court held that the defendant is liable for defaming the plaintiff and awarded some nominal amount to her.^[2]

STATEMENT MUST REFER TO THE PLAINTIFF

• Defamatory statement needs to be specifically for the plaintiff. It need not be of generalized nature like statements made for doctors, lawyers, teachers etc.
• Newstead vs. London Express Newspapers LTD – The defendants published a defamatory article stating that Harold Newstead, a man who belongs to Camber well, had been convicted of bigamy. The story was actually true. But the action for libel is brought by another same-named person Harold Newstead, who was also a barber. As the words were considered to be understood as referring to the plaintiff, the defendants were liable. ^[3]
• Harsh Mendiratta vs. Maharaj Singh – In this case the Delhi high court states that the suit of defamation is only maintainable by the person who was defamed, and not by his family or his friends.^[4]

STATEMENT MUST CAUSE SERIOUS HARM: EITHER ON REPUTATION OR FINANCIAL LOSS

• g., The plaintiff lost his job because of the statement made.

DEFENCE

The following are the Defences taken in an action for defamation: –

JUSTIFICATION OF TRUTH

• The truth is the most important defence or justification for defamation.
• The foremost point of the defamation was ‘false’; therefore, true statement won’t fall under defamation.
• This is because only false statements against a person constitute defamation.
• Hence, if the person making the statements proves them to be true, he can escape the charge.
• Alexander vs. North Eastern Railway – In this case, the plaintiff was travelling in a train without ticket, had been sentenced to a fine of 1 pound or 14 days’ jail as an alternative. The defendants published the notice that the plaintiff was charged the fine of 1 pound or 3 weeks’ imprisonment as an alternative. The plaintiff alleged that the defendant had committed libel by describing the penalty issued to him inaccurately. It was held that the statement was substantially true, so defendants are not liable.

FAIR AND BONAFIDE COMMENT

• A fair bonafide comment on a matter of public interest is a Defence in an action for defamation.
• Essentials of a fair comment are:
  • That a comment or criticism need not a statement of fact.
  • The comment is on a matter of public interest.
  • The comment is fair, bonafide and honest made in good faith.
• g., Making statements against maladministration by a government’s cabinet minister may not amount to defamation.

PRIVILEGED STATEMENT

• As the word itself suggest; giving special status to some, with limitation (special occasions, particular time and place)
• Special occasions when the law recognizes that the right of free speech outweighs the plaintiff right to defamation and a defamatory statement made on such occasion is not actionable. E.g., A member of parliament has an absolute privilege for any statement he makes in parliament.
• The constitution grants complete immunity from prosecution for defamation for such statements.
• Such privileges sometimes exist in judicial proceedings as well.

APOLOGY

• In the case the person who makes the defamatory statements issues an apology, he can escape from liability.
• For the Defence, the person suffering the tort of defamation must accept the apology and pardon him.

            There is a special case of INNUENDO in defamation which means, when the statement was prima facie innocent but because of some secondary meaning, it may be considered to be defamatory.

            For this secondary instance plaintiff must prove the secondary meaning i.e. innuendo which makes the statement defamatory.

            For example: Z makes a statement that X is an honest man and he never stole my watch. Now this statement is at first instance may be innocent, but it can be defamatory if the person to whom it was made, interprets from this that X is a dishonest man having stolen the watch.

In other words, innuendo is a sarcastic comment or carrying dwell meaning made on a person.

TYPES OF DAMAGES AVAILABLE IF ONE HAS BEEN DEFAMED
            Whether you’ve experienced defamation as such or pre quoted, it’s necessary to grasp what damages are accessible to you.

            Damages are an umbrella term for any kind of monetary compensation awarded to a victim during a civil case. Most defamation plaintiffs request to payment of compensatory damages within the form of special damages and general damages and punitive damages if they’re out there. It may be a token amount also’

SPECIAL DAMAGES

            Special damages are comparatively easy and are mentioned as liquidated damages. As one would possibly imagine, an award of special damages is supposed to reimburse a victim for actual damages. Actual damages would possibly include loss measurable or assessable in cash values, loss of business, and expenses incurred in legal action against the defamation.

            Special damages should be well-documented. the great news is that this could be accomplished with proof that may be simple to get like bank statements, tax returns, and proof of expenses within the variety of invoices and receipts. Plaintiffs has to supply testimony to claim their claims for restitution.

            One may require the assistance of associate witness to assist prove damages. In defamation cases, knowledgeable supply specialised information in rhetorical accounting, business, promotion, or IT knowledgeable witnesses will enlighten the court the precise nature of the defamation and its impact on the victim. they’ll conjointly give complicated monetary analysis to calculate your economic damages. The unbiased, skilled opinion of associate witness will go an extended approach toward influencing a jury’s call to award damages.

GENERAL DAMAGES 

            General damages may be more durable to quantify during a defamation case. they’re conjointly brought up as non-economic damages. indemnity compensate plaintiffs for emotional distress and reputational hurt caused by the defamation.
Proving emotional distress may be a troublesome task during a defamation cause. whereas it’s intuitive that libellous statements showing emotion have an effect on a victim, proving this is often a challenge. witnesses will facilitate prove emotional distress, and their testimony will generally be weighted additional heavily than the victim’s testimony.

            If one has full-fledged emotional distress as a result of defamation, keep track of however it’s compacted his lifestyle together with disruptions routine like sleeping habits, appetite, and participation in social activities.

            Reputational damages are a typical consequence of defamation. A plaintiff’s testimony alone is also low to get a bequest for reputational damages. the most effective thanks to prove hurt to one’s name is to supply third-party testimony or objective proof of harm to the reputation.

PUNITIVE DAMAGES

            The objectives of damages are not to compensate one because the complainant for the defendant’s actions to defame others. Courts could award damages to penalize and deter the defendant’s actus reus. The punishments in such cases are not exemplary.

DEFAMATION CLAIMS THAT SEMICONDUCTOR DIODE TO JUDGMENTS

            To explore what it takes to prove damages, let’s discuss a couple of defamation cases involving on-line content that yielded judgments for plaintiffs. detain mind that damages analysis is particular to every case and once liability has been established, there are many ways to prove damages and damages awards will vary wide betting on the facts of the case.

            Above, the boy’s room case was conjointly mentioned keeping the facts in mind concerning the defamation on-line.

DEFAMATORY GOOGLE REVIEWS

            In Fireworks Restoration Co., LLC v. Hosto, the complainant with success brought a defamation claim against a former business partner WHO announce 3 pretend Google reviews regarding the business once their relationship sour. The jury awarded the complainant $150,000 in damages that was upheld as an exemplary damage.

            The court noted that the testimony of third-parties on the plaintiff’s diminished name and also the proof bestowed of the plaintiff’s monetary losses once the negative reviews were announced was enough to prove reputational injury. Fireworks Restoration Co., LLC v. Hosto, 371 southwest 3d eighty-three – Mo: Court of Appeals, Japanese Dist., 2012.

DEFAMATORY WEBSITES

            In Bouveng v. Nyg Capital LLC, the complainant was awarded $1.5 million in damages for her defamation claim against her former leader that was upheld on attractiveness.

In this case, the complainant didn’t request economic damages, however the judicature based mostly its call to uphold the decision on the injury the complainant suffered to her name. The defendants engaged in an in-depth on-line campaign to slander the complainant for nearly a year by posting libellous articles on a web magazine they closely-held. The articles defendant the complainant of being a sex slave, criminal, felon, partaking in fraud, and enclosed various different libellous statements the judicature delineate as “egregious.” The defendants conjointly used SEO techniques to govern the plaintiff’s search results that resulted within the statements reaching many thousands of individuals.

            The court found that the plaintiff’s name had been grievously broken. In assessing the reputational injury suffered by the complainant, the court noted proof of the intensive reach of the libellous statements, their prominence within the plaintiff’s Google search results and their probability to hurt the plaintiff’s name within the future.

DEFAMATORY FACEBOOK POSTS

            In Laugh land v. Beckett, the complainant was awarded $15,000 normally damages and $10,000 in punitive damages once the defendant created a pretend Facebook account impersonating him. The court found that the defendant was motivated by a need to win romantic favour with the plaintiff’s former girlfriend.

            The account announces various statements regarding the complainant that the court found libellous like occupation himself chiseller, a bank manipulator, and a foul father. The pretend account created active makes an attempt to speak with different people on Facebook regarding the complainant and had six friends. The judicature found that the pretend Facebook account had broken the plaintiff’s name.

            The court conjointly found that the defendant’s actions were intentional and malicious that supported a penitentiary injury award to penalise him and deter others from similar conduct.

            There are clearly more examples of cases in which plaintiffs were awarded damages for defamation, however the foremost necessary factor to recollect is that proving damages related to defamation is not easy but troublesome however not impossible.

RELATIONSHIP BETWEEN THE FREEDOM OF SPEECH AND DEFAMATION

“Liberty is not a personal affair but a social contract”

            Common law has provided protection to reputation through the law of defamation. It’s been recognized for a protracted life with that protection of reputation that will conflict with freedom of expression. This is often the most reason why the connection ‘between the protected interest in reputation and also the competing interest in freedom of expression’ has begun to vary. Freedom of expression is not any longer ‘to be thought to be a residual personal right, however is interpreted as a positive right reinforced by the general public interest. Most notable case of ‘Reynolds v Times Newspapers’ explains freedom of expression in terms of the general public interest ‘in receiving and imparting data within the context of a democratic society’.

REYNOLDS V TIMES NEWSPAPERS LTD [2001] 2 AC 127

Publication of defamatory political information not subject to general qualified privilege

Facts

            The plaintiff was a former Taoiseach (Prime Minister) of Ireland. He began proceedings against a British newspaper publisher in relation to an article which alleged that he had dishonestly mislead parliamentary and cabinet colleagues whilst in office. The defendants pleaded the Defence of qualified privilege at common law. The plaintiff was successful at trial.^[5]

Issue

            The Court of Appeal held that the publication was not covered by qualified privilege. In the House of Lords, the defendants argued that the common law should recognize a generic qualified privilege covering the publication of political matters affecting UK citizens, except those proven to have been motivated by malice.

Held

            The House of Lords declined to acknowledge such a class of general qualified privilege for political data per se a privilege would fail to provide adequate protection for reputation. it absolutely was not inappropriate to differentiate political data from different matters of great public concern. The established common law approach to misstatement of fact remains sound. Below the present common law rules, qualified privilege might apply to political data wherever there had been an obligation to publish the material to the intended recipient and that they had an interest in receiving it. the flexibility of the present common law permits courts to contemplate individual cases and provides acceptable weight to competitive factors together with the importance of freedom of expression by the media as a “watchdog” on matters of public interest. still, where the data is within the political domain, the court ought to be slow to conclude that publication isn’t within the public interest. In Sir Joshua Reynolds v Times Newspapers [2001] a pair of AC 127, a lot of stress was placed on protection of name as a matter of public interest that currently permits the interest in reputation to compete on a wider ground with freedom of expression. Lord Nicholls stated: ‘reputation is an integral and necessary a part of the dignity of the individual. It additionally forms the basis of the many selections in an exceedingly democratic society that’s elementary to its well-being.

Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if particularly no chance to vindicate one’s reputation. when this happens, society as well as the individual is that the loser. The protection of reputation is conducive to the general public good. it’s in the public interest that the reputation of public figures shouldn’t be debased incorrectly. in the political field, in order to make a wise choice, the electorate must be able to identify the great as well as the bad. consistently with these issues, human rights conventions acknowledge that freedom of expression isn’t an absolute right. Its exercise is also subject to such restrictions as are prescribed by law and are necessary in an exceedingly democratic society for the protection of the reputations of others.’ Therefore, it may be aforementioned that, one has the liberty to talk and to speak their views however, that also comes with the limitation, and people limitations are set for the general public interest. Even if the statement is denigrator regarding the actual person however, if it’s in favour of public interest it won’t be coated below defamation. There are more Defences of defamation with really offer one to perform their right to talk truth against others and on the opposite had the necessities of defamation offer one the proper to safeguard their name.

Therefore, it can be easily said that, “RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IS THE RIGHT OF ONE’S AND AS WELL AS THE DUTY TO OTHER”.

CONDITIONS AND GROUNDS, WHERE THE RELATIONSHIP BETWEEN THE PARTIES IS THE BARRIER FOR DEFAMATION

COMMUNICATION BETWEEN HUSBAND AND WIFE

            In the eye of law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication. In TJ. Ponnen v. M.C. Verghese, the question which had arisen was whether a letter from the husband to the wife containing defamatory matter concerning the father-in-law (wife’s father) could be proved in an action by the father-in-law against the son-in-law. In that case, one T.J. Ponnen wrote no. of letters to his wife, rathi, containing some defamatory imputations concerning Rathi’s father, M.C. Verghese, Rathi passed on those letters to her father. The father-in-law launched a prosecution against his son-in-law complaining about the defamatory matter contained in those letters. Ponnen contended that the letters addressed by him to his wife are not, except with his consent, admissible in evidence by virtue of section 122, Indian Evidence Act, and since the wife is not permitted to disclose those letters, no offense of defamation could be made out.^[6] It may be relevant here to quote section 122, Indian evidence act, which reads as follows:

            “No person who is or has been married shall be compelled to disclose any communication made to him during the marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other”.

            The Kerala high court held that the letters meant for the wife could not be proved in the court either by her or through any relation of her to the prejudice of her husband because such communication is precluded by law to be disclosed and what cannot be or is not proved in a court has to be assumed as non-existent in the eye of law. Ponnen was, therefore, held not liable.

The Supreme Court reversed the decision of the Kerala high court, it was held –

That even though in view of section 122, Indian Evidence Act, the complainant cannot seek to support his case upon the evidence of the wife of the accused, but if the communication between the husband and wife have fallen to his hands, the same can be proved in any other way. According to Shah, J:

            “The complainant claims that he has been defamed by the writing of the letters. The      letters are in his possession and are available for being tendered in evidence. We see no reason why an inquiry into the complaint should, or the preliminary contentions raised, b prohibited. If the complainant seeks to support his case only upon the evidence of the   wife of the accused, he may be met with the bar of section 122 of the Indian Evidence         Act. Whether he will be able to prove the letters in any other is a matter which must be             left to be determined at the trial and cannot be made the subject-matter of an inquiry at            this stage”.

            Communication of a matter defamatory of one spouse to the other is sufficient publication. In Theaker v. Richardson, the defendant wrote a letter to the plaintiff making false allegations of her being a prostitute and a brothel-keeper. The letter was sent under the circumstances that the plaintiff’s husband in all probability would have read the same. The plaintiff’s husband opened and read it. The defendant was held liable.

CONCLUSION

From the above mentioned three objectives, namely:

1. To examine the essentials constituents and Defences of defamation.
2. To examine, Right to freedom of speech as one’s right and duty towards others.
3. To examine the different conditions and grounds, where the relationship between parties becomes the barrier of defamation.

            Conclusion what can be made, freedom of speech comes with the limitation and while proving the right to one; it also creates in them the duty towards others; duty to work in accordance with the public interest. Though defamation gives one’s the right to protect their good name, but at the same time it allows the others also to portray the truth in front of the public.

“Liberty is not a personal affair but a social contract”

            Therefore, while highlighting point of research paper will ultimately revolve around public interest. Even essentials, Defences, and Exceptions of defamation revolves around same objective.

­­­­­­­­­­­­­­­­­­­REFERENCES

• RK Bangia (book)
• Principle of Tort Law (book)
• https://www.lawteacher.net
• https://indiankanoon.org
• https://lawrato.com
• net
• https://inforrm.org
• https://www.minclaw.com
• https://timesofindia.indiatimes.com

[1] https://indiankanoon.org/doc/285448/.

[2] https://www.minclaw.com.

[3] https://inforrm.org.

[4] https://indiankanoon.org/doc/285448/.

[5] https://www.lawteacher.net/cases/reynolds-v-times-newspapers.php.

[6] R.K. Bangia

Authored By:

RAKSHITA BHARGAVA

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

The post DECODING THE DRACONIAN RELATIONSHIP BETWEEN RIGHT TO FREEDOM OF SPEECH AND DEFAMATION appeared first on Legal Desire Media and Insights.

This paper tries to make an attempt to study and critically analyze the abrogation of Article 370 by the central government. A detailed introduction covers all the events from the historical background till the recent revocation of the article by the union government. The series of events from the accession of Jammu and Kashmir into India to the incorporation of Article 35A into the constitution are all discussed in a comprehensive manner. The provisions of both the Articles i.e.; Article 370 as well as Article 35A have been examined. The special status provisions are discussed and how they differ from the other states. The opinions of the people supporting and defying the abrogation are studied. The assertion that Article 370 and 35A are violative to the basic structure of the Indian Constitution and towards woman of the state is looked into. Article 14,15 and 21 along with the Preamble of the Indian Constitution are studied to examine the assertion. Interpretation of the articles and assumptions as to how Article 370 infringes the constitution and woman rights are stated. The petitions before the Supreme Court regarding the constitutionality of the revocation and the indefinite shut down of internet and communications in the valley are thoroughly studied. The agony and pain of the local people and their views regarding the removal and the changes it will bring into their lives are all studied. The political parties condemning as well as backing the Centre’s move and their notions are all discussed in a comprehensive manner. The response of the international community and the major castigation by China and Pakistan are covered. The bills and resolutions presented by Home Minister Amit Shah and the new Jammu and Kashmir Reorganization Act, 2019 is incorporated in the paper which provides for the bifurcation of the state. Analysis and concrete viewpoints have been amalgamated in the paper.

Keywords- J&K, Constitution of India, Article 370, Article 35A, Instrument of Accession (IoA), Violative to Basic Structure, Non-Permanent Resident (NPR), Permanent Resident (PR), Two Union Territories (Jammu and Kashmir and Ladakh).

INTRODUCTION

            “Change does not change tradition. It strengthens it. Change is a challenge and an opportunity, not a threat”^[1]

            Pre-independent India had 565 princely states and these were ruled by the princes. These princely states were not ruled by the British Umpire but these princes owed their allegiance to the Britishers. Partition plan was announced in June 1947 and it became clear that country should now be divided into India and Pakistan. But what will be the fate of these princely states was a big question back then and these princely states were given options either to join India or Pakistan or remain independent. Some princely states joined India while some joined Pakistan except the princely state of Jammu & Kashmir.

            J&K was then ruled by Maharaja Hari Singh and he signed a Standstill Agreement on August 12, 1947 with both India and Pakistan and he made it very clear that he won’t join either India or Pakistan. In 1947 the Indian Independence Act was passed through which India became completely independent and Pakistan also became independent as a separate country. This Act led to the lapse of all the relations between the British Crown and the princely states. So, in August 1947 when India and Pakistan became as an independent nation. J&K also became an independent state. However, in J&K a very popular movement was taking its shape which was led by very charismatic leader Mr. Sheik Mohammed Abdullah who wanted to overthrow the monarchy of Maharaja Hari Singh and wanted to establish a democratic socialist state of J&K. Mr. Abdulla was however in favor of J&K becoming a part of India despite the fact that the majority of the population in J&K are Muslims which was not liked by Pakistan and as a result Pakistan attacked Kashmir and violated the Standstill Agreement which they have signed with Maharaja Hari Singh and wanted to capture Jammu and Kashmir through force. At this point Maharaja Hari Singh asked for help from the government of India. Lord Mountbatten was the Governor General of India and said that India will not help him and will only help if he signs the Instrument of Accession (IoA) with India. Instrument of Accession stated that J&K will accede with the Dominion of India which Maharaja Hari Singh signed with India on October 26, 1947 and on October 27, 1947 Lord Mountbatten accepted this IoA and by this Jammu and Kashmir became the part of India. All other princely states also signed the Instrument of Accession with the government of India just like J&K did but the difference was they also signed the Merger Agreements with the government and due to which they lost all their individual identities. But Jammu and Kashmir only signed the IoA with the government and no Merger Agreement. However, the IoA Maharaja Hari Singh signed with the GoI was also conditional through which they only gave three powers to the parliament of India which were-

• Defense
• External Affairs
• Communication

            This made very clear that the parliament of India can make laws only on these three matters and on rest of the matters the laws will be made by the Government of J&K.

            After the IoA the Indian Army went to the battle ground to fight against Pakistan. Meanwhile the Prime Minister of India Mr. Jawahar Lal Nehru approached the United Nations seeking their help to end the war in J&K. He also persuaded Maharaja Hari Singh to give up his powers and transfer them to Sheik Mohammed Abdulla who was appointed as the Prime Minister of Jammu and Kashmir. United Nations was then controlled by USA and USA had very close relationship with Pakistan so United Nations called for a ceasefire and as a result the war between India and Pakistan ended but United Nations Security Council asked for another resolution which was calling for plebiscite or right to self-determination. United Nations Security Council said that India & Pakistan both should withdraw their troops from Jammu and Kashmir and there should be a plebiscite and people of J&K should decide whether they want to join India or Pakistan in the year 1948.In India the Drafting Committee was drafting the constitution on the other side United Nations was asking for demilitarization so the question which was fuming all over the country was that what could be the constitutional link between J&K and Union of India. This issue was debated for more than five months as to what should be the relationship between J&K and India and an Article was given which became Article 370 of the Indian Constitution and the title of this Article was A Temporary Provision. This Article was drafted by Gopalswami Ayyangar a minister in union however the key drafter Mr. Ambedkar and Sardar Patel opposed it because they wanted to count in as one nation and not to give any special status to one state. The title was temporary provision because till the time demilitarization is completed in J&K and plebiscite takes place there has to be some temporary constitutional link between India and Jammu & Kashmir and this temporary link was Article 370 of Indian Constitution and this is how Article 370 came into the picture.

            Article 370 says that the Parliament of India can make laws on only those subjects mentioned in the Instrument of Accession which are Defense, External Affairs and Communication and whenever the Parliament make laws on these subjects, the government of Jammu and Kashmir should be consulted.

            Now the question here is Can the other provisions of the Constitution of India be applied to J&K? Yes, a presidential order has to be issued and the other provisions of the constitution can be applied to the state. But Article 370 says that presidential order cannot be issued without the concurrence or acceptance from the government of J&K no provisions can be applied to the state. However, if the government of J&K gives the permission to the Presidential Order and apply this provision to J&K then the constituent assembly of J&K will have to ratify the decision of the government of Jammu and Kashmir.

            Now how the constituent assembly came into picture in J&K? The Prime Minister of India Pt. Jawaharlal Nehru went to Srinagar and assured the people of J&K plebiscite or Right to Self- Determination. While all this was going on and to give signal to the rest of the world that India has not acquired J&K through force or only because one individual Maharaja Hari Singh signed IoA but the accession of J&K is as per the will of the majority of the people of J&K. The then Prime Minister Mr. Sheik Mohammed Abdullah addressed the people of Jammu and Kashmir and told them that they will have their own constituent assembly and it will decide the future relations between J&K and India. Pt. Nehru liked the idea and said that now no one will question that India has acquired J&K through force because the constituent assembly will make their own constitution for J&K and determine the relation with India and J&K will become an integral part of India. This is how the constituent assembly came into picture and all the members of this assembly belonged to J&K National Conference headed by Sheik Mohammed Abdullah.

            Article 370 also says that any amendment in the India Constitution under Article 368 cannot be automatically applied to J&K unless and until the govt. of J&K agrees. When the constitution of India was enacted only two Articles, (Article1 & 370) of the Indian Constitution were applicable to the state of J&K and no other provisions of the Indian Constitution were applicable in the state. In 1952 there were talks between Jawaharlal Nehru and Sheik Mohammed Abdullah because the other provisions such as Fundamental Rights(FR), Directive Principles of State Policy(DPSP), Jurisdiction of Supreme Court, Election Commission etc. were not applicable in the state of Jammu & Kashmir and to make these provisions applicable to the state of Jammu and Kashmir these talks led to the Delhi Agreement of 1952 and the result of this agreement was that the National Flag of India will have the same respect in J&K as in other parts of India but apart from this J&K will have their own Flag and the status of this flag will be equal to that of the Indian National Flag. It was also decided that J&K will have Sadr-e-Riyasat and this will be elected by the legislative assembly of J&K and this Sadr-e-Riyasat will be the head of the constituent assembly of Jammu and Kashmir. Apart from this J&K will have its own Prime Minister and these two positions Prime Minister and Sadr-e-Riyasat continued till 1965 but was eventually replaced by two positions of Chief Minister and Governor respectively through the Sixth Constitution of Jammu and Kashmir Amendment Act 1965 which was passed by the Congress government.

            The Constitutional (Application to Jammu and Kashmir) Order 1954 on May 14, 1954 by the President of India, Rajendra Prasad, settled some constitutional relationship between J&K and Union of India. It stated that Indian citizenship and all related benefits such as fundamental rights etc. were to be extended to the ‘permanent residents’ of J&K. It also incorporated Article 35A based on the 1952 Delhi Agreement which empowered the state legislature to legislate on the privileges of permanent residents and these privileges included the benefit of purchasing any immovable property, benefits in higher education and health care, means to vote, contest elections etc. Non-permanent residents of the state even though they are Indian citizens were not allowed to these privileges. Article 35A was added to the Indian Constitution through an appendix and is therefore not seen in the Indian Constitution but it is there in the Constitution of J&K. The jurisdiction of Supreme Court was also extended to the state and the Central government was given the power to declare National Emergency in the event of external aggression but the power in case of internal disturbances could only be exercised if the state government gives its concurrence. These provisions were in accordance with the Delhi Agreement of 9152 however there were some provisions which were not decided in the Delhi Agreement but were also implemented in the state of J&K such as the Financial relations between India & J&K and the fact that they would be same as they are in other states etc. On August 5 2019 the Government of India issued a constitutional order which superseded the 1954 order thus making all the provisions of the Indian constitution applicable to the state of J&K which led to the revocation of Article 35A thus ending the concept of permanent residents and the provisions relating to the immovable property which this effectively ended the concept of Article 370 because all the provisions of the constitution are now applicable within the state. The resolution was passed in both the houses of parliament with 2/3^rd majority which scattered the state into two Union Territories Jammu and Kashmir and Ladakh and abolished Article 370 and 35A and on August 6^th 2019 it was stated that all clauses of 370 except clause 1 will cease to be inoperative.

OBJECTIVES

• To understand and examine the Article and find loopholes if any.
• To analyze Supreme Court’s stand on the
• To examine the claim that Article 370 violates Article 14,15 and 21 of the Indian Constitution.
• To study the response on the move by the central government, views of the people residing in the valley, opposition and the international
• To understand the new Jammu and Kashmir Reorganization Act and study the new composition and changes that has taken place after the abrogation of erstwhile Article 370 and

HYPOTHESIS

            The abrogation of Article 370 and 35A is a progressive step and was necessary for the growth and advancement of the region as well as for the whole country. However, the indefinite shutdown of internet and communication was abuse of power and highly unconstitutional.

METHODOLOGY

            Research Aim- The research aims to provide information in an explanatory manner i.e.; it explains the causes and consequences of a well-defined issue and precise conclusions are for an established issue, here, Abrogation of Article 370 of Indian Constitution.

            This paper is written using basic research technique which aims to develop knowledge, theories and predictions.

            Research Data– Information was collected from a number of certified articles available online as well as online newspapers. All the arguments have been categorically represented along with authors view. Videos, Text books and internet sources have been referred thoroughly. A fixed research design was used as the subjects, scope of study, timescale, objectives were pre-determined by the author.

ARTICLE 370 AND ARTICLE 35A

            Article 370 of the Indian Constitution was drafted in Part 21 of the Indian Constitution which comprises of Temporary, Transitional and Special Provisions of our constitution and it gave Special Autonomous Status to the state of Jammu and Kashmir on October 17, 1949. This Article provides for a separate constitution for Jammu and Kashmir and it limits the Union Parliament to make laws on only three subjects which were mentioned in the Instrument of Accession(IoA) which were Defense, External Affairs and Communication and the rest provisions to be made through a Presidential Order which needs the concurrence of the state government. Under Article 370 the Parliament has no power to declare Financial Emergency in the state of J&K under Article 360 of Indian Constitution. The parliament can declare emergency only in case of External Aggression but not in case of Internal Disturbances unless the state government gives its concurrence. So, J&K has its own separate flag, constitution and penal code known as the Ranbir Penal Code. The Indian Penal Code applicable within Indian is not applicable in the state. The President’s Rule is not imposed in the state instead the Governor’s Rule is imposed.

            Article 1 and 370 are applicable in the state of J&K and apart from this all the provisions stated in the Presidential Order of 1954 are also applicable in the state. Article 370 clause 3 states that if the constituent assembly of J&K says that Article 370 should be abrogated and then the President through public notification agrees to the same than the Article can be abrogated. But the question of problem was that the constituent assembly of J&K was dissolved in 1957.

            Article 35A was incorporated in the Indian Constitution through an appendix and is therefore not seen in the Indian Constitution but is present in the J&K constitution. This article was a result of the Delhi Agreement of 1952 and it empowers J&K legislature to define “permanent citizens” and their rights and privileges which non-resident even though citizen of India is not entitled. Permanent residents were all persons who were a state subject as on 14 May 1554 or who has been resident of J&K for 10 years and has acquired immovable property lawfully within the state. Those people who were the residents of the princely state of J&K when it got merged with India and their descendants were called the state subjects. So basically, a person who is not a permanent resident of the state cannot vote in State Assembly or contest elections or can get any government jobs or any access to scholarships within the state. That person is not allowed to buy any immovable property in the state.

            How does the government remove Article 370? So, the only way Article 370 could be removed was through clause 3 which stated that the President can remove 370 but it will require the approval of the constituent assembly of the state of Jammu and Kashmir which was dissolved back in 1957. On August 5^th 2019 President Ram Nath Kovind issued an order through clause 1 of Article 370 known as The Constitution (Application to Jammu and Kashmir) Order, 2019 which stated that this order will replace the 1954 constitutional order issued by the then President Rajendra Prasad. The 2019 constitutional order added clause 4 in Article 367 which is the interpretation clause of Article 370 which stated that the word constituent assembly in Article 370 will now be considered as the legislative assembly thus ending the deadlock.

ANALYSIS

            Through Article 370 J&K gets special status however it is not the only state to enjoy such status. States like Manipur, Nagaland, Assam, Arunachal Pradesh, Mizoram, Sikkim, Gujarat, Maharashtra, Karnataka, Goa, Andhra Pradesh and Telangana also enjoys special status. Article 371, 371A to 371H and 371J deals with 11 such states and these states enjoys special status. However, 371I and 371E deals with Goa and Andhra Pradesh respectively but does not include any provision which can call it ‘special’. Article 370 and 371 were a part of the Indian Constitution from 26 Jan 1950 while Article 371A-I were added later into the constitution. Our Constitution recognizes the diverse culture, traditions, language etc. found in different states and they are an integral part of the country but these states have their own requirements which the constitution recognizes to safeguard their own culture etc.  Through Article 370 J&K gets separate flag, constitution, the tenure of the legislative assemble is 6 years unlike the rest of the Indian states where it is 5 years, Union Parliament cannot legislate freely like it can in other part of India. Through Article 35A Indians cannot purchase land in J&K, they don’t have voting rights, they cannot apply for any public jobs or scholarships etc. which are discriminatory in itself. Kashmiris have dual citizenship one of Kashmir and the other of India. No other state has such provisions. The critics argue that these provisions are discriminatory to the basic structure of the Constitution. By the abrogation of Article 370 Indians can now purchase property in Kashmir as a result the price of the land will increase and the local Kashmiris can lease out their land and can earn greater profits, educational opportunities will increase, the companies will come in the state to invest which will increase employment opportunities. These factors will lead to an overall economic development and as a result more jobs will be created. Increased employment and development will diminish terrorism as the local people will engage themselves in doing jobs. It will keep them engaged. Also, now Indian laws will be applied to the state so the Kashmiris can avail the benefits like Right to Education and Right to Information etc. Also, it will have a psychological impact that there is one constitution, one flag which will create a feeling of oneness amongst the people and they will feel more integrated.

            But many people were against it and they argue that the local people were not asked before doing this, thousands of troops came and the internet supply was shut off, the landlines were shut off, Kashmiri politicians were kept under house arrest. So, they claim that this was illegal occupation and they compare it with fascism. They say that it was unconstitutional and the government used a loophole because the state assembly was not in existence at that time. But the counter argument to this is if it was informed that this was going to happen then it would have led to a lot of violence and chaos. Also constitutional expert Subash Kashyap said that” the order was constitutionally sound and no legal and constitutional fault can be found in it”^[2]. However, after studying both the sides of argument it is subjective to determine who is correct and who isn’t but removal of 370 is a progressive step as it will help in the overall economic development in the state. Also, now opportunities will be created and can be availed by everyone including the Indian citizens which is clearly in accordance to Article 14 which was claimed to be violated amongst several other articles by Article 370 and 35A. Also, through discussions and prior information if the solution could have been found then it would not have taken us 72 years to find a solution to it. Also, this will curtail terrorism in the valley. Private companies and investments can uplift the economy of the state and will open doors for growth and advancement in the region and will unite the Kashmiris with the rest of the country. It will provide for better educational as well as healthcare for the people in the valley. So, this was a necessary step and it will be beneficial for all in the country.

ARBITRARY TO BASIC STRUCTURE

            Article 370 and 35A has been often claimed to be violative to the basic structure of the constitution. Many people claim that it is an infringement of Article 14, 15, 16 and 21 of the Indian Constitution. It is said that these articles violate the constitutional provisions which are established by law and are arbitrary to our constitution. Article 35A differences between permanent residents of the state and non-permanent residents and confers special privileges to the permanent residents of the state which is a clear violation of Article 14 Equality before law. Article 14 of Indian constitution clearly says that every person living within the territory of India has equal right before the law but in the state of J&K they are not given rights to vote, access to educational scholarships or healthcare or apply for state’s governmental jobs, they cannot contest elections, cannot buy land within the state because they are not the permanent residents of the state which is clearly a violation of the Fundamental Right which in itself is a clear violation of Article 14. It also violates Article 15 of the Indian Constitution which says no citizen should be discriminated by the state only on grounds of their caste, race, sex, religion or place of birth. Giving privileges on the basis of place of birth or condition has to be fulfilled for a person to be called a permanent resident is clear violation of Article 15. It also violates Article 21 of the Indian Constitution right to life and personal liberty. Right to life includes everything which makes human life complete and meaningful. It is also violative to the integrity of the nation as enshrined in our Preamble for the constitution. People in J&K always have a constant feeling of not being the part of India. I myself visited Kashmir in 2015 and the local people in Kashmir asked us Are you from India? To which my father said we are in India. You are also in India to which he said we are from Kashmir. Obviously, I will not generalize this as the thinking of all people residing in the state but definitely that man was not the only one to think like that and this feeling of not being a part of your own country is clearly against the unity and integrity of the country. When we go out of our country, we don’t designate ourselves by the state we live in but by our country “India” and we all are the citizens of India. We all are Indians not Rajasthani not Gujarati not Kashmiri. Restrictions on immovable property hinders the private and industrial sector which decreases growth and advancement in the valley and the direct outcome of which are the limited job availability in the state which increases terrorism in the valley as the local people are easily brainwashed by the militants. The increased terrorism in Kashmir led to the decrease in tourism in the valley as people are always frightened to visit due to sudden terrorist attacks on the army personnel. When I visited Kashmir there was such an attack in which many army personnel were injured and the terrorists were killed as a result the main road to Srinagar was blocked and we were told by the army to take the secondary route to the city. Many cars were stopped before the check post where the attack took place and we waited there with an apprehension of fear. It was quite an experience. Now coming back to my point Article 35A empowered the state legislature to define permanent residents and give them special privileges. Now the problem which arises here is that it violates the rights of women. If a woman marries a person who isn’t the permanent resident of the valley, she lost her status of permanent resident as a result of which she was denied the right to inherit or own property in the valley. However, this provision was overruled by J&K High Court in State of Jammu and Kashmir V. Susheela Sawney in 2002. It said that women marrying non-permanent resident (NPR) will not lose her status as PR neither do will she lose the right to inherit or buy immovable property within the state but this judgement did not give such rights to their progeny. However, this provision does not apply to the children to a male PR marrying female NPR which in itself is a violation of gender equality.

ANALYSIS

            Article 370 and 35A infringes the fundamental rights and were discriminatory to woman. Now as the articles have been abrogated the provisions which violated the rights of citizens will be reinstated thus giving equal opportunity to other people and thereby paving its way for the growth and advancement in the valley and bringing it under the ambit of the Union Parliament. The parliament can freely legislate on all matters and the people can buy properties, apply for state jobs and can contest as well as vote in the general assembly elections, can gain advantage of the scholarships and healthcare facilities thus bringing it in consonance with the country and the other states. It is a progressive step and will provide ample amount of opportunities to the people residing inside and outside of the valley and will strengthen the economy.

JUDICIAL PRONOUNCEMENTS

            After the abrogation of 370 the centre disconnected the entire population of Kashmir from internet and telecommunication and Section 144 orders were imposed in the valley. Many petitions were filed before the Supreme Court relating to the shutdown of internet and imposition of 144 and on 10 Jan 2020 after five months from the removal of 370 from Kashmir the Supreme Court gave its judgement by a three constitution bench headed by Justice N.V. Ramana along with Justice B.R. Gavai and R. Subash Reddy that indefinite internet ban by state is not permissible under our constitution and is abuse of power and said that imposition of Section 144 cannot be used as a mechanism to avoid genuine protests which are allowed by our constitution. Section 144 have very specific parameters and only if those are satisfied can the magistrate pass the order and the repetitive orders under 144 of CrPC would be considered as an abuse of power. It said that internet shutdown needs to be reviewed by the authority and indefinite shutdown is unconstitutional as Internet is a fundamental part under Freedom of Speech and Expression and Right to free movement guaranteed under Article 19 of the constitution.

            The decision of the centre to shut down the internet and communication for more than five months was highly unacceptable and should be condemned by all. The people in the valley could not communicate with their family, relatives and friends. This is a complete ambush on democracy and rights of the citizens under article 19 and 21 of the constitution. Imposition of section 144 for so many days was violative to the people’s right to protest peacefully without any violence or chaos.

            The other case on abrogation of Article 370 in J&K questioned the legality of the decision. A constitution bench headed by Justice N.V. Ramana was constituted along with Justice SK Kaul, R Subash Reddy, B.R Gavai and Surya Kant who heard 23 petitions which were filed in the apex court which questioned the government’s decision of August 5^th 2019. It challenged the constitutionality of the decision. The petitioners argued that the government’s decision of dividing the state into two Union Territories Jammu and Kashmir and Ladakh is unconstitutional and that this is violating democracy, federalism and fundamental rights and it is done against the people of J&K. The argument by Dinesh Drivedi on behalf of Prem Shankar Jha is a limited argument in which he has claimed that this matter needs to be referred to a larger bench in SC. Apart from this he argued that Article 370 was supposed to be temporary till J&K makes its own constitution which was framed in 1957 after which the constituent assembly dissolved. After that the government cannot do anything and what the government did was completely illegal.

            Apart from the abrogation of 370, the government also repealed the constitution of J&K along with the constituent assembly which were considered to have a status of primacy as referred in the Prem Nath Kaul case of 1957 and therefore it is not possible for the Indian government to repeal it. The argument made by the centre government was that the sovereignty of J&K by 370 was Temporary. Also, there are many petitions challenging the reorganization of J&K on the grounds that the state has been downgraded and violative to Federalism and that the requirements under Article 3 are not fulfilled. The parliament has to get views of the legislature of the state for whom they are changing the dynamics of the state and was not happened. The decision regarding the constitutionality and the new reorganization is yet to come as the SC will keep hearing the matter further.

            The Constitution Bench on its judgement declined the plea of referring the matter to larger bench and said that it will continue to hear the case. The petitioners asked for a larger bench of either seven or nine judges on the ground that the two judgements of Supreme Court- Prem Nath Kaul V. J&K in 1959 and Sampat Prakash V. J&K in 1970 were in direct conflict with each other and the current five judge bench cannot hear the issue. The Attorney General Mr. K.K. Venugopal told the five-judge bench that both the cases dealt with different issues. The SC on March 2^nd 2020 said that there is no irreconcilable conflict between the two judgements and it will continue hearing the matter further.

            Now what the Supreme Court will give judgement regarding the constitutionality of the revocation of the articles is yet to be seen but the shutting down of internet and telecommunication along with imposition of 144 was abuse of power as correctly said the court and should be highly condemned. It was very authoritative and oppressive move by the central government and it failed to take in account the situation of the local people residing in the valley who have been living there under those provisions for years and suddenly after the removal of the articles they weren’t allowed to leave their houses due to the imposition of Section 1444 of CrPC and without communication and internet which are basic amenities to human in today’s world and keeping the politicians of the valley under houses arrest. This is unconstitutional and against democracy and is complete despotism.

PEOPLE’S RESPONSE

            After the government abrogated Article 370 in J&K opinions regarding the decision started blowing. The Kashmiris living in the valley were highly disappointed by the central government and claimed that abrogation of 370 has cut their wings off. Some claimed that J&K was chosen because it was Muslim majority state and this decision of the government is based on religion and is violative to the idea of secularism as stated in our Preamble. They could not protest, as the internet and communication were shut along with restrictions on the movement. They have said that hundreds of young men were detained by the police. They had constant fear of speaking against the government.

            Special status was the bridge between India and Kashmir and now it has been broken. The government made the decision without considering the views of the people living in the valley. Some people said that the government should come and talk to them instead of sitting in Delhi. These are some opinions of the native people which were covered in the newspapers and it apprises us with the views and psyche of the resident in the valley.

            Generally, the people in the valley were not happy with the decision. They stated that they are imprisoned by the Indian government. They will not sell their properties and want peace and no interference by the government. They think they are being pushed to the medieval times where the king used to invade the territory and siege them until they kneel down and this being a barbaric act and extreme control by the state over its subjects. They need to win our hearts if they want to integrate us with India not by deploying troops and shutting down communications and internet. This is not a normal life in this modern world. However, Union Minister Prakash Javadekar after two months since the removal of Special Status of J&K asserted that situation in J&K is normal and people are happy with the decision of the government and can now avail benefits on par with the rest citizens of the country. He also contended that there is no restriction on media and newspapers are published in the valley. Governor of J&K Satyapal Malik promised 50.000 new jobs and employment opportunities thus proving the stance of the central government that removal of 370 will create opportunities and reduce terrorism in the region. The opinion regarding the removal is mixed. Some supports it as being progressive while some say it is an ambush on constitution and democracy. After the removal of 370 Aam Aadmi Party supported the Centre’s move and Arvind Kejriwal tweeted this will bring peace and development in the state. YSR Congress extended the support to the government and praised the courageous move by the Home Minister Mr. Amit Shah. Bahujan Samaj Party appreciated the move of the central government and extended it support regarding the removal and bifurcation of the state. Biju Janata Dal, Telegu Desam Party, AIADMK, Shiv Sena were amongst other parties who backed the Centre’s move. Shiv Sena called it Independence in true sense. But Congress, Trinamool Congress, National Conference, People’s Democratic Party, Janata Dal (United), DMK etc. criticized the central government and openly castigated the decision. Congress said it is a black day in the constitutional history of India. It will increase terrorism and diminish development. Congress leader Kapil Sibal said that congress won Kashmir however the ruling government lost it. Omar Abdullah called it betrayal of trust.

            Trinamool Congress asserted that it is an assault on India’s federalism. RJD and CPM stated that it is Palestine in making. DMK President called it Murder of Democracy. Two PDP’s MP tried to rip apart the constitution. The international community reacted to these developments however Indian government had a firm stand on this stating that this is an internal matter of the country which will boost development and improve governance in the state. Pakistan condemned Indian government and tried seeking support from other community and its allies and mostly to the Islamic countries. Pakistan never recognized J&K as part of India but always considered it as a disputed territory. Surprisingly UAE did not support Pakistan’s claim instead asserted that it is an internal matter solely aimed for good governance. Donald Trump contended to mediate between India and Pakistan and said that Prime Minister Narendra Modi asked him to mediate the Kashmir issue which was nullified by the Indian government and USA took its stance back and said it is an internal matter and should be resolved by the two countries bilaterally. The issue of Kashmir reached United Nation Security Council sought by Pakistan and was backed by China for open discussion on the matter but the other fifteen members were not in favor of this. UN Security Chief Antonio Guterres said this is an internal matter and need to be resolved bilaterally and with peace. China called it unacceptable to bifurcate the state and make Ladakh a Union Territory. However, USA, UAE and Sri Lanka backed India’s move.

JAMMU AND KASHMIR REORGANISATION ACT, 2019

            Home Minister Amit Shah introduced two bills and two resolutions in the parliament regarding Jammu and Kashmir. Constitution (Application to Jammu and Kashmir), Order 2019 which was issued by the president of India to supersede the 1954 order. The Resolution for Repeal of Article 370 of the Constitution of India. The Jammu and Kashmir (Reorganization) Bill, 2019 and the Jammu and Kashmir Reservation (2^nd Amendment) Bill, 2019^[3] were presented in the parliament. The president used his power under 370 and changed the provisions of 370 and extended the provisions of the central laws in the state. On August 9^th 2019 The Jammu and Kashmir (Reorganization) Bill, 2019 received the assent of the President which bifurcated the state into two Union Territories Jammu and Kashmir and Ladakh which came into effect on 31^st October 2019. The Union Territory of J&K will have Legislature like we have in Delhi and Puducherry whereas Ladakh will not have any legislature like the rest UT’s if the country. The UT of Ladakh have two districts Kargil and Leh while the rest of the districts will be under the UT of Jammu and Kashmir. The Union Territories will have Lieutenant-Governors appointed by the President of India. Earlier J&K has special status and autonomy and most central laws were not applicable in the state unless the state’s legislative assembly approves them. Now the state is bifurcated into Union Territory which means more control by the central government as the UT’s are directly administered by the Lieutenant-Governor who acts directly for the President. So now the local bureaucracy or the police are under the direct control of the Home Ministry unlike the States in which these are under the state legislature. The centre appointed R.K. Mathur the former Defense Secretary as the first Lieutenant-Governor of the UT and G.C. Murmu the former principal secretary of PM Narendra Modi as the LG of J&K. The UT of J&K will have a legislative assembly in accordance with Article 239A that is the Puducherry Model and will have a term of five years and 107 seats in total but 24 will remain symbolically vacant as they under the Pakistan Occupied Kashmir (POK) so only the 83 will have elected members. There will be reservations in the Assembly for Scheduled Castes and Scheduled Tribes as they are in the rest of India. The assembly will frame laws on the State and Concurrent List like the UT’s are allowed. So, the assembly cannot make laws on public order, police, trade etc. to avoid conflicts. The Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC) will be applicable within the state thus replacing the erstwhile Ranbir Penal Code and J&K CrPC. The personal laws and the transfer of property laws will be applicable within the state. The 2005 Hindu Succession Act amendments will be applicable which gave women equal inheritance rights. The central Right to Information will be applied superseding the 2009 RTI law of the state. However, the constitutionality of the decision and the new reorganization is challenged in the SC and the decision is yet to come. So as of now India has two extra Union Territories and one less state.

CONCLUSION

            This research paper concludes the hypothesis that the abrogation of Article 370 and 35A is a progressive step and was necessary for the growth and advancement of the region as well as for the whole country. However, the indefinite shutdown of internet and communication was abuse of power and highly unconstitutional on the part of the central government. The laid objectives are dealt holistically under the different chapters along with the authors assumptions and assertions. The fact that article 370 was violative to the constitution is proved with the help of the interpretations of the articles. The new changes after the revocation has been discussed which are now on par with the other states. The arguments by both supporting and defying the abrogation has been presented and it is clear that the abrogation was necessary. The central government’s move regarding the communication and internet is condemned along with the authors opinion which is concrete. The abrogation will create new opportunities for the people inside and outside the valley and will contribute in the economic advancement, growth and development of the region. The new Jammu and Kashmir Reorganization Act and the provisions are in accordance with the provisions of the other Union Territories. It can be seen as a step towards reducing the terrorism and militants in the valley as the region will now be directly administered by the central government through Lieutenant-Governor and all the central laws will be applicable in the state.

REFERENCES

• P. JAIN, Indian Constitutional Law (Lexis Nexis, 8^th edition., 2018)
• N. Shukla, Constitution of India (Eastern Book Company, 13^th edition., 2017)
• The Indian Express, Newspaper
• http://indianexpress.com
• http://www.hindu.com
• http://www.bbc.com
• http://economictimes.indiatimes.com
• http://www.indiatoday.com
• http://www.hindustantimes.com

[1] Prince Philip of England.

[2] http://commonslibrary.parliament.uk/world-affairs/asia/kashmir-the-effects-of-revoking-article-370/.

[3] http://timesofindia.indiatimes.com http://www.prsindia.org http://www.thehindu.com.

Authored By:

MIMANSHA DURGAPAL

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7

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